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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kent V. v. State, Dept. of Health & Social Services, Office of Children's Services (6/4/2010) sp-6480
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| Kent V., | ) |
| ) Supreme Court No. S- 13578 | |
| Appellant, | ) |
| ) Superior Court No. 3PA-06- 00010 CN | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, DEPARTMENT | ) |
| OF HEALTH & SOCIAL SERVICES, | ) |
| OFFICE OF CHILDRENS SERVICES, | ) |
| ) No. 6480 June 4, 2010 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Kari Kristiansen and Vanessa White, Judges.
Appearances: John C. Pharr, Law Offices of
John C. Pharr, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for Appellee.
Dianne Olsen, Law Office of Dianne Olsen,
Anchorage, for Guardian Ad Litem.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, Christen, and Stowers, Justices.
CHRISTEN, Justice.
I. INTRODUCTION
Kent and Naomi are the biological parents of Kenny,1
who was born in November 2002. In September 2007 the Office of
Childrens Services (OCS) filed a petition to terminate Kents and
Naomis parental rights. The petition was denied in July 2008
following a bench trial because the superior court did not find
beyond a reasonable doubt that placement with Naomi would be
harmful to Kenny. A second petition to terminate Kents and
Naomis parental rights was filed in October 2008. Kent filed a
motion to dismiss the second petition, arguing that it was barred
by the doctrine of res judicata. The superior court denied the
motion to dismiss and the case proceeded to trial. At the second
trial, OCS relied upon psychological examinations of Kenny and
Naomi that were conducted after the first trial and also
introduced evidence from the first trial. The court granted the
second petition and terminated the parental rights of both
parents. On appeal, Kent renews his argument that the second
petition was barred by the doctrine of res judicata. Because the
trial court appropriately considered the entirety of Kennys
history and because the second petition presented new material
facts, we affirm the trial courts termination of parental rights.
II. FACTS AND PROCEEDINGS
Kent is the biological father of Kenny, who was born in
November 2002 and is an Indian child under the Indian Child
Welfare Act (ICWA).2 Kent has a history of criminal conduct and
alcohol abuse and he was incarcerated when Kenny was born. Kennys
mother, Naomi, has a history of poly-substance abuse. Naomi was
participating in a residential substance abuse program when Kenny
was born and one of her older children was in the States custody.
Because of her circumstances, OCS filed a petition for custody
when Kenny was just days old. The court granted OCS supervision,
Kenny remained placed with Naomi, and the petition was dismissed
by OCS in December 2004.
In February 2006, Kent made a report of concern to OCS.
He alleged that it was dangerous for Kenny to live with Naomi
because Naomis husband was abusive and Naomi was continuing to
use drugs. Following an investigation, OCS filed a new CINA
petition in April 2006 and again took emergency custody of Kenny.
At the time, Kent was working on the North Slope and had no
established relationship with Kenny. Kenny was placed with his
current foster family in June 2006. He has lived with them
continuously since that time.
After resuming custody, OCS began working with Kent to
help him establish a relationship with Kenny. The goal was a
full transition to Kents care. The process started with
telephone conversations and progressed to daytime visits, then
overnight visits, and, eventually, weekend visits. In May 2007,
the final weekend before Kenny was to transition to a trial
living situation with Kent, OCS received a substantiated report
that Kent had resumed drinking and had slapped Kenny. A few days
later, Kent was arrested for his fifth DUI, and the plan for a
trial placement in Kents home was abandoned.
OCS petitioned to terminate Kents and Naomis parental
rights in September 2007 and a trial was held in April and June
2008. The superior court focused its findings on Naomi; Kent was
not available to parent at the time because he was incarcerated.
The superior court ruled that OCS proved by clear and convincing
evidence that Kenny was a child in need of aid. But emphasizing
the high burden of proof in ICWA cases proof beyond a reasonable
doubt including testimony of a qualified expert witness3 the
court did not terminate either partys parental rights because it
did not find that Kenny would suffer serious emotional or
physical damage if Naomis parental rights were not terminated.
The court noted that OCSs expert witnesses really had nothing to
say about whether or not putting [Kenny] with [Naomi] . . . would
result in serious harm to [Kenny]. The court also stated that
under the circumstances, [Naomi] is being so closely monitored by
the program that shes in, theres nothing there to suggest
placement would be harmful. The only statement the court made
about Kent was that he is currently incarcerated pending trial
and unavailable to meet [Kennys] needs.
Immediately after the courts oral ruling, OCSs attorney
asked the court if it would allow OCS to present another witness
who OCS believed could meet the ICWA standard. Counsel for Naomi
and Kent both objected, arguing that OCS had their opportunity
and they lost it. The court responded that OCS would have to
file a motion to reopen the evidence if it wants to have a second
bite at the apple so that the parents would have an opportunity
to respond. OCS did not file such a motion, and no appeal was
taken from the superior courts decision.
A little over a month after the court denied OCSs first
petition, Kenny participated in a series of psychological
evaluations with Dr. Melinda Glass. Dr. Glass authored a report
that concluded, among other things, that:
Underneath [Kennys] apparent outward ability
to function is likely extreme emotional
chaos. [Kenny] cannot afford another trauma,
another failed placement, or any disruption
in his life. Another disruption would likely
be very damaging to his ability to form
trusting relationships and severely
compromise his ability to develop normally.
. . . .
[Kenny] has been through trauma and
instability that has impacted his resiliency
and ability to trust. Another move would
cause a significant risk to his present
stability. He is fragile and vulnerable, and
in order to have a chance to function as a
normal child he needs stability, appropriate
parenting, and confidence in his environment.
About two months after the first petition was denied,
Dr. Russell Cherry conducted a neuropsychological evaluation of
Naomi. He concluded that given her history of noncompliance with
treatment plans and probation requirements:
the onus of responsibility should be upon the
patient to prove that she can maintain
sobriety, maintain employment, abstain from
abusive relationships with criminals/felons,
and not violate other probationary
requirements for a period of 12-24 months
before she could even be considered for
duties as a primary caregiver of her child.
He also reported that Naomi stated that she has no regret
regarding her past history, which supported his conclusion that
[g]iven the apparent fact that the patient does not appear to
take responsibility for her past actions, she appears to be at
elevated risk for repeating them.
On October 2, 2008, OCS filed a second petition to
terminate the parental rights of Kent and Naomi. In addition to
the prior allegations, the second petition included extensive
references to the post-trial psychological examinations and
recommendations.
Naomi was arrested for violating conditions of her
electronic monitoring program, including the consumption of
alcohol, on October 24, 2008. As a result, she was returned to
prison with a scheduled release date of February 1, 2011.
On October 28, 2008, Kent filed a motion to dismiss the
second petition based on the doctrine of res judicata. OCS
opposed the motion, as did the guardian ad litem (GAL) appointed
for Kenny. On November 3, 2008, the court held a hearing to
consider a petition to extend OCSs custody of Kenny. The court
concluded that Kent and Naomi had not made substantial progress
to remedy [their] conduct. The GAL submitted a report outlining
Naomis relapse, subsequent incarceration, and continuing contact
with her abusive husband. The GAL also noted that Kent had not
demonstrated any willingness for reunifying with his son since
his failed trial home placement in May 2007. Following a
permanency hearing held December 4, 2008, the court again
concluded that Kent and Naomi had not made substantial progress
to remedy [their] conduct. The same day, the superior court
heard oral argument on Kents motion to dismiss. The court denied
the motion, finding that the second petition raised new facts and
that Kents res judicata arguments were not persuasive in the
context of a CINA case.
A second trial was held in March 2009. Kent was in a
residential substance abuse program at the time of the second
trial and had not seen Kenny since July 2008. Kent did not
present any witnesses or evidence and he acknowledged he was not
in a position to have Kenny placed with him. But Kents clear
position at trial was that he did not want to lose his parental
rights.
In its May 2009 written findings of fact, the court
repeated many of its findings from the first termination trial,
including that Kent remained unavailable to parent, based on
incarceration, neglect, [and] drug and alcohol use . . . that
substantially impair [his] ability to parent. The court again
found that Kent had not sufficiently shown any long-term success
living in an unstructured environment to warrant return of
[Kenny], and it observed that Kent was still awaiting trial and
possible sentencing on his fifth DUI charge, which carried a
minimum of three years incarceration. The court also found that
Kent has not indicated any willingness to reunify with [Kenny]
and instead has offered to relinquish [his parental rights] if
[Kents] aunt and uncle . . . adopt [Kenny]. Citing to testimony
presented at the second trial, including Dr. Glasss testimony,
the superior court concluded that [t]here is evidence beyond a
reasonable doubt . . . that return of [Kenny] to [Naomis] or
[Kents] custody is likely to result in serious emotional damage
to the child.
Kent appeals. He argues the superior court erred by
not concluding that the second petition was barred by res
judicata.
III. STANDARD OF REVIEW
Application of the doctrine of res judicata presents
questions of law which we review de novo.4
IV. DISCUSSION
A. OCSs Second Petition To Terminate Kents Parental Rights
Is Not Barred by Res Judicata.
Kent argues that we should reverse the superior courts
decision terminating his parental rights on the grounds that OCSs
second petition is barred by res judicata.5 But he makes no
substantive challenge to the courts conclusion that OCS met its
burden of proving the elements necessary to sustain its petition.6
Under the doctrine of res judicata a final judgment in
a prior action bars a subsequent action if the prior judgment was
(1) a final judgment on the merits, (2) from a court of competent
jurisdiction, [and] (3) in a dispute between the same parties . .
. about the same cause of action.7 The doctrine is based on
policies of judicial efficiency8 and has as its primary objective
. . . judicial finality.9 We have noted that [t]o the extent
that a litigant is allowed to try his case in multiple tribunals,
the court is inviting forum shopping and nuisance litigation.10
But the policy of finality underlying res judicata . . . must be
tempered by our paramount concern that a party be afforded his
day in court.11 Furthermore, res judicata does not act as a bar
when the conduct giving rise to the second suit occurs after the
conclusion of the first suit.12
1. Other jurisdictions have expressed concern about
applying res judicata in child welfare cases.
It is a question of first impression in Alaska whether
the doctrine of res judicata applies in the context of a petition
to terminate parental rights.13 As OCS and the GAL note, courts
in other jurisdictions have questioned whether res judicata
should be applied in cases where the state seeks to terminate
parental rights, reasoning that the circumstances in a childs
life are ever-changing and that the courts focus must be on the
childs welfare. For example, the Utah Court of Appeals has
stated that to effectively determine the 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.14 The Utah court continued: determining whether the
circumstances of child abuse or abandonment justify terminating
parental rights is not the type of needless litigation
contemplated by the doctrine of res judicata.15 The Supreme Court
of South Dakota has stated that when it comes to protecting
children res judicata should be cautiously applied.16
We have stated that in a termination trial, the best
interests of the child, not those of the parents, are paramount.17
And we agree with other jurisdictions that the prospect of
applying the doctrine of res judicata to CINA cases presents
troubling questions.18 But we do not decide here whether res
judicata may ever be applied to child welfare cases in Alaska
because, in this case, Kent did not meet his burden of showing
that the elements of res judicata are satisfied.
2. OCSs second petition to terminate Kents parental
rights is not barred by res judicata because it
raised new material facts.
The superior court agreed with Kent that OCS should not
be permitted to just file a termination petition without new
facts, but it denied Kents motion to dismiss because it found
that we do have new facts here. The courts conclusion that there
were new facts was based on: (1) psychological evaluations that
had not been conducted at the time of the first trial; (2) new
facts set forth in the GALs November 25, 2008 report including
Naomis relapse and re-incarceration; and (3) the fact that Kent
had not demonstrated any willingness for reunifying with his son
since his failed trial home transition in May 2007.
Kent concedes that res judicata would not bar a second
petition for termination if there are material new facts that
arise in the interim.19 (Emphasis in original.) But he argues
that nothing new occurred as respects him and [t]here was not one
point regarding the father that the state could not have raised
in the first trial. He argues the psychological examinations
conducted after the first decision relied on facts and
circumstances in existence at the first trial, and therefore
their reports were not new information or a changed circumstance.
He also argues that the new facts regarding Naomis relapse are
irrelevant points with respect to whether his own parental rights
should be terminated. OCS and the GAL counter that the third
element of res judicata is not met here because new material
facts did develop between the time the first petition was denied
and the time the second petition was granted.
We do not agree with Kent that no new material facts
arose after the first petition that could serve as the basis for
a second petition. In the second trial, the superior court
considered Dr. Glasss psychological examination of Kenny, which
had not been performed at the time of the first trial. The
report makes specific reference to, and relies upon, facts and
developments that occurred after the first trial, including
Kennys evolving needs. Dr. Glass emphasized that Kenny was about
to enter kindergarten and opined that [t]he primary focus at this
moment needs to be upon preparing [Kenny] for the major
developmental change which will occur when he enters school. She
emphasized that it is tremendously important for [Kenny] to have
a structured, stable home that is supportive of his ability to
start school. And she expressed concern that instability would
likely compromise his ability to appropriately develop
relationships at school and adjust to the demands of
Kindergarten. Dr. Glass also recognized that Kenny is well-
bonded to his foster family, that the foster family wishes to
adopt him, and that with the passage of time his bond to his
foster family grew stronger while his relationship with his
biological parents became more attenuated. She found that Kennys
living arrangement with his foster family represents the first
stability he has had in his life and expressed her opinion that
to change this would be damaging to his emotional development,
and ability to trust and form healthy relationships. Dr. Glass
concluded that Kenny needs stability right now, and that [h]e is
in a home where the potential for him to be able to trust is
huge, both in his foster parents and his siblings. When asked if
removing Kenny from his nearly three-year placement would cause
him serious emotional damage, Dr. Glass testified that it would.
She also expressed concern over whether Kenny could afford to
wait until his mother was released from prison. She testified
that, given his emotional state, such a delay would be very
unhealthy for him and it would likely cause significant harm for
him.
Dr. Glass also offered opinions relating to Kent that
were not available at the first trial. Based on her examination
of Kenny and Kennys failed placement with Kent, she opined, [i]t
is questionable whether his biological father should continue to
be involved at all with [Kenny]. Dr. Glass also testified that
Kenny told her that he did not trust his dad.
Kents continued course of conduct his failure to
improve as a parent and his continued inability to provide a
stable environment for Kenny serves as another independent basis
supporting the second petition and the superior courts decision.
At the conclusion of the first trial, the superior court found
that Kent was unavailable to parent [Kenny] at the present time
and noted that Kent was given the opportunity to reunify with
[Kenny] but that this attempted placement failed. The court
found that Kent had not sufficiently shown any long-term success
living in an unstructured environment to warrant return of
[Kenny], and concluded that he remain[s] unavailable to parent,
based on incarceration, neglect, drug and alcohol use and the
fact that [w]hile incarcerated [he] has [not] made adequate
arrangements for the child.
Kent presented no evidence at the second trial to rebut
the superior courts earlier findings, leading the court to remark
that it has not seen anything from [Kent] other than the fact hes
still in treatment, . . . so were still in a spot where [Kent]
has not completed his case plan. The court found that Kent was
still not available at this time to parent, and it did not have
an impression[] of when hell be available to parent. The court
concluded that [Kenny] cant wait. Kent fails to recognize that
the passage of time alone can have significant consequences if
the developmental needs of a child as young as Kenny are not
being met.
Kents continuing unavailability and inability to parent
Kenny is new evidence that supports OCSs second petition.20 To
decide differently would place children at risk of living in
perpetual limbo. At the second trial, the court had even less
reason to expect that the parties circumstances might allow them
to parent Kenny within a reasonable time. Both were facing
potential multi-year periods of incarceration before they could
even begin to work towards reunification with Kenny. And the
GALs November 28, 2008 permanency report noted that Kenny has
waited 30 months for [Kent] and [Naomi] to address issues that
put him at risk and that [b]oth parents have failed [Kenny] and
failed in a timely manner to demonstrate that they can put
[Kennys] needs first. We have repeatedly recognized that a
childs need for permanence and stability should not be put on
hold indefinitely while the childs parents seek to rectify the
circumstances that cause their children to be in need of aid.21
Kents res judicata argument is premised on his view that the
familys circumstances had not appreciably changed between 2008
when the court denied the first petition and 2009 when the court
granted the second petition. But he fails to recognize that the
passage of time without corresponding progress on his case plan
provides support for the courts decision that termination of
paternal rights is now warranted.
3. The court properly considered new evidence
regarding Naomis circumstances.
Kent argues that Dr. Cherrys neuropsychological
evaluation of Naomi, her relapse into alcohol abuse, and her
subsequent incarceration did not constitute evidence relevant to
the petition to terminate his rights. We disagree. Whether a
court should grant a petition to terminate the parental rights of
one parent is not a question that can easily be separated from
the question of whether to terminate the rights of the other
parent.22 If Naomi had been able to successfully remedy the
conduct that caused Kenny to be in need of aid, it is likely that
there would have been no need to seek termination of Kents
parental rights. As it is, neither parent was able to
successfully complete a case plan in a reasonable timeframe, so
it is necessary to terminate their parental rights in order for
Kenny to achieve permanency.
We agree with the superior court that the second
petition was supported by new material facts that developed after
the first trial. We therefore conclude that the third element of
res judicata is not met in this case.23 OCSs second petition to
terminate Kents parental rights is not barred by res judicata.
V. CONCLUSION
We AFFIRM the superior courts decision terminating
Kents parental rights.
_______________________________
1 This opinion uses pseudonyms for the parties involved.
2 25 U.S.C. 1903(4).
3 25 U.S.C. 1912(f) (No termination of parental rights
may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to
the child.)
4 Alderman v. Iditarod Properties, Inc., 104 P.3d 136,
140 (Alaska 2004).
5 Kent also discusses the related doctrine of collateral
estoppel in his appellate briefs. However, because Kent based
his arguments below on res judicata rather than collateral
estoppel, did not raise collateral estoppel in his points on
appeal, and does not make clear in his briefs what issue he
believes should be precluded, we do not address the doctrine of
collateral estoppel here. Hagans, Brown & Gibbs v. First Natl
Bank of Anchorage, 783 P.2d 1164, 1166 n.2 (Alaska 1989) (Issues
not properly raised . . . at trial are not properly before this
court on appeal.).
6 One of Kents points on appeal is [t]he trial court
erred in terminating [Kents] parental rights, but because he did
not brief this issue and conceded at oral argument that he is not
challenging the substance of the superior courts conclusions, we
consider any substantive challenge waived. Wasserman v.
Bartholomew, 38 P.3d 1162, 1171 (Alaska 2002) (concluding
plaintiff waived issue, even though it was point on appeal,
because it was not briefed).
7 Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997).
8 Anchorage Police Dept. Employees Ass'n v. Feichtinger,
994 P.2d 376, 387 (Alaska 1999).
9 Drickersen v. Drickersen, 546 P.2d 162, 169 (Alaska
1976) (noting that res judicata is founded upon the generally
recognized public policy that there must be some end to
litigation and that when one appears in court to present his
case, is fully heard, and the contested issue is decided against
him, he may not later renew the litigation in another court)
(citing Heiser v. Woodruff, 327 U.S. 726, 733 (1946)).
10 Feichtinger, 994 P.2d at 387.
11 Palfy v. First Bank of Valdez, 471 P.2d 379, 384
(Alaska 1970).
12 Plumber, 936 P.2d at 167 (citing Restatement (Second)
of Judgments 24 cmt. f (1982)). Comment (f) of the Restatement
(Second) of Judgments 24 states that [m]aterial operative facts
occurring after the decision of an action with respect to the
same subject matter may in themselves, or taken in conjunction
with the antecedent facts, comprise a transaction which may be
made the basis of a second action not precluded by the first.
13 We rejected a res judicata claim in the context of a
child custody proceeding where a fathers allegation of drug use
by the mother constituted a substantial change in circumstances,
concluding that the issue of the mothers drug abuse was not being
relitigated. Fardig v. Fardig, 56 P.3d 9, 12 (Alaska 2002).
14 In the Interest of J.J.T., 877 P.2d 161, 164 (Utah App.
1994).
15 Id.
16 People ex rel. L.S., 721 N.W.2d 83, 90 (S.D. 2006).
17 A.B. v. State, Dept. of Health & Social Servs., 7 P.3d
946, 954 (Alaska 2000) (quoting A.A. v. State, Dept of Family &
Youth Servs., 982 P.2d 256, 260 (Alaska 1999)).
18 See In re Pardee, 475 N.W.2d 870, 874 (Mich. App. 1991)
(doctrine of res judicata cannot settle the question of a childs
welfare for all time); In re Interest of V.B. and Z.B., 370
N.W.2d 119, 121 (Neb. 1985) ([T]he doctrine of res judicata
cannot settle a question of the childs welfare for all time to
come; it cannot prevent a court at a subsequent time from
determining what is best for the children at that time.); People
In Interest of J.R., 711 P.2d 701, 703 (Colo. App. 1985)
(Although 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.); In re Juvenile Appeal, 460 A.2d
1277, 1282 (Conn. 1983) (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.). But see Slatton v. Brazoria
County Protective Servs. Unit, 804 S.W.2d 550, 553, 557 (Tx. App.
1991) (noting that [r]es judicata is applicable to an attempt to
relitigate issues previously tried in a termination case because
[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, but upholding the termination of
parental rights on other grounds).
19 Kent also conceded at oral argument that if there are
new material facts a court should consider the entire record, not
just what occurred subsequent to the initial proceedings. See In
re Newman, 619 P.2d 901, 905 (Or. App. 1980) ([W]hen a second
termination proceeding is not itself barred, the proof is not
limited by res judicata or collateral estoppel principles to
facts or evidence which was not considered in, or which came into
being after, the first proceeding.).
20 See In re A.S., 752 P.2d 705, 711 (Kan. App. 1988)
(Future changes that would justify reviewing evidence considered
in prior termination proceedings could be triggered by nothing
more than a continued course of conduct, i.e., a failure to
change or to improve as a parent.).
21 See, e.g., J.H. v. State, Dept. of Health & Social
Servs., 30 P.3d 79, 87 (Alaska 2001).
22 See A.B. v. State, Dept. of Health and Social Servs., 7
P.3d 946, 954-55 (Alaska 2000) (remanding case to trial court to
consider whether terminating parental rights of one parent but
not the other is in the childs best interests).
23 Having decided on these grounds, it is not necessary
for us to consider OCSs argument that the first element of res
judicata is also not met in this case.
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