author: KONENKAMP, Justice (on reassignment). ZINTER, Justice SABERS, Justice

text:
    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 Nov. 9, 2005.
    Reassigned April 17, 2006.
    Decided Aug. 16, 2006.
    Rehearing Denied Sept. 25, 2006.

      Lawrence E. Long, Attorney General, Brent Kempema, Assistant Attorney General, Department of Social Services, Pierre, South Dakota, Attorneys for appel-lee 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 contendré 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 disposi-tional 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. 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 State to file a second petition.

[¶ 15.] Over the mother’s objection, Judge Lieberman allowed Wollman to relate the phone conversation he had with Judge Caldwell. He testified that:

Based upon the conversation I had with the court it was my understanding — my impression that the [c]ourt would not entertain the motion. In hindsight I guess I could have forced the issue and got a hearing scheduled, but the phone conversation left me with the impression that it would be fruitless and that a new petition would be the correct way to proceed.

In response to this testimony, the mother contended that the State could have and should have forced the issue with Judge Caldwell, and therefore the doctrine of res judicata precluded the State from proceeding with the second petition. Judge Lieberman denied the mother’s motion to dismiss. He concluded that no final order existed addressing the merits of the February 12 incident, that the issues in the new petition were not identical to the previous petition, and finally, that the issues in the new petition had not been previously litigated. Consequently, the court allowed the State to proceed with the second abuse and neglect petition.

[¶ 16.] An adjudicatory hearing was held on May 19, 2004. The mother testified on both direct and cross examination that she continued to visit T.O. after Judge Caldwell’s oral dismissal on January 30, 2004. She further admitted that she brought J.S. with her when she visited him on February 12, 2004. When asked on cross examination if she was still married to T.O., she could not say one way or the other. She testified that there would be no harm in having the girls live with her and T.O. together, or in having T.O. visit the girls. More significantly, the mother testified that she believed T.O. was innocent and that none of the prior sexual contacts had ever happened.

[¶ 17.] In rendering its decision, the court took judicial notice of the previous abuse and neglect action in Lincoln County and T.O.’s criminal file. It further acknowledged that the previous petition was dismissed by Judge Caldwell. However, based on the mother’s conduct since January 30, 2004, the court ruled that the allegations in the second petition were established by clear and convincing evidence. The court declared that “it is inescapable that [the mother] and [T.O.] intend to continue their relationship.” Therefore, the court adjudicated the children abused and neglected in that they lacked proper parental care and were threatened with substantial harm under SDCL 26-8A~2(2) and (6).

[¶ 18.] After the adjudication, the State moved to excuse the requirement that DSS provide reasonable efforts to reunite the mother with her children. The State alleged that under SDCL 26-8A-21.1(7), DSS was “not required to seek reunification of a child with a parent who has exposed the children to or demonstrated the inability to protect the children from substantial harm or the risk of substantial harm and the child or another child had been removed from the parent’s custody because the removed child was adjudicated to be abused and neglected by a [c]ourt on at least one previous occasion.” The court found that both requirements under this statute had been met and excused any obligation on the part of DSS to provide reasonable efforts to reunify the family. According to the court, despite all the previous efforts by the social workers, the mother “still does not understand what it takes to keep her children safe from abuse.” Moreover, the court found “incredible” the mother’s latest assertions that she will protect the children from T.O. In the court’s view, her promises were made “to placate the Department of Social Services, the special advocate and the [circuit court].”

[¶ 19.] After the court declared that DSS was not required to provide reasonable efforts, the State moved to terminate the mother’s parental rights. The court found that the conditions that led to the removal of the children still existed, in that the mother still failed to understand what it takes to protect her children. Moreover, the court found that there was little likelihood that the conditions would change because she failed “to acknowledge that [T.O.] sexually assaulted her minor children and has refused to protect her children from their abuser.” The court further declared the mother unfit and that “potential harm could result to the children were they to be returned to [her] custody.” In sum, the court found that the least restrictive alternative was to terminate the mother’s parental rights. Otherwise, the court believed that it “would be gambling with the future of the minor children if they were to be returned to the custody of [the mother].”

[¶ 20.] The mother appeals asserting that (1) the doctrine of res judicata prohibited the circuit court from acquiring jurisdiction over this abuse and neglect petition; (2) the court erred when it adjudicated the children abused and neglected; (3) the court erred when it granted the State’s motion to excuse reasonable efforts to reunite the family; and (4) termination was not the least restrictive alternative commensurate with the children’s best interests.

Analysis and Decision

1. Res Judicata

[¶ 21.] We review de novo a circuit court’s ruling on the issue of res judicata. Wells v. Wells, 2005 SD 67, ¶ 11, 698 N.W.2d 504, 507 (citing Banks v. Int’l Union Elec., Elec., Technical, Salaried and Mach. Workers, 390 F.3d 1049, 1052 (8th Cir.2004) (citation omitted)). Here, Circuit Judge Lieberman concluded that res judi-cata did not apply because the allegations contained in the second petition were new, lacked a final judgment on the merits, and were not and could not have been previously litigated. In contrast, the mother contends that Judge Caldwell heard the same allegations in the first petition that were then repeated in the second petition, Judge Caldwell still had jurisdiction when the February 2004 incidents occurred, and the State failed to bring the matter on for hearing before the case was dismissed. Therefore, the mother insists that there exists a final judgment on the merits.

[¶ 22.] To invoke the doctrine of res judicata, four elements must be established: (1) a final judgment on the merits in an earlier action; (2) the question decided in the former action is the same as the one decided in the present action; (3) the parties are the same; and (4) there was a full and fair opportunity to litigate the issues in the prior proceeding. Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citation omitted). In examining whether these elements are present, a court should construe the doctrine liberally, unrestricted by technicalities. However, because the doctrine bars any subsequent litigation, it should not be used to defeat the ends of justice. Instead, courts “must give careful consideration to the case at hand before erecting the doctrine’s preclusive bar.” Cf. Federated Depart. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 2429, 69 L.Ed.2d 103 (1981); Brown v. Felsen, 442 U.S. 127, 132, 99 S.Ct. 2205, 2209, 60 L.Ed.2d 767 (1979).

[¶ 23.] The doctrine of res judi-cata is premised on two maxims: “ ‘A [person] should not be twice vexed for the same cause’ and ‘it is for the public good that there be an end to litigation.’” Carr v. Preslar, 73 S.D. 610, 619, 47 N.W.2d 497, 502 (1951) (citations omitted). Res judica-ta seeks to promote judicial efficiency by preventing repetitive litigation over the same dispute. Wells, 2005 SD 67, ¶ 15, 698 N.W.2d at 508 (citing Faulk v. Faulk, 2002 SD 51, ¶ 16, 644 N.W.2d 632, 635) (additional citation omitted). This being so, it is important to consider the nature of abuse and neglect proceedings. The protection of children from continuing abuse and neglect is not the type of needless litigation contemplated by the doctrine. See Interest of J.J.T. and T.J.T., 877 P.2d 161, 164 (Utah Ct.App.1994) (“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”).

[¶ 24.] Longstanding jurisprudence recognizes that special concerns may warrant exceptions to claim preclusion: “The strongest justification arises from cases in which disposition of the first action has failed to provide any tolerable resolution of a continuing problem.” Wright St Miller & Cooper, 18 Fed. Prac. & Proc. Juris. 2d § 4415, Exceptions To Claim Preclusion Rules. In particular, when it comes to protecting children res judicata should be cautiously applied. Other courts have expressed similar sentiments. In People in Interest of J.R., 711 P.2d 701, 703 (Colo.Ct.App.1985), the court noted that “[ajlthough 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.”

[¶ 25.] In this regard, the Oregon Court of Appeals is worth quoting at length:

Termination of parental rights proceedings generally arise out of a continuing and cumulative set of circumstances, in which the child is within the juvenile court’s jurisdiction and, often, is subject to agency custody or supervision. An order denying a petition to terminate parental rights seldom leads directly to the termination of wardship or of agency involvement. It is one thing to say that such an order bars a second termination proceeding when there has been no change in the operative facts which led to the initiation of the first proceeding; it is very different — and clearly wrong— to contend that, if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one.

In the Matter of Newman, 49 Or.App. 221, 619 P.2d 901, 905 (1980) (emphasis added).

[¶ 26.] In expressing a like sentiment, the Connecticut Supreme Court, in the case of In re Juvenile Appeal, 190 Conn. 310, 460 A.2d 1277, 1282 (1983), wrote:

The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. [Citations omitted]. Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. 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.

(Emphasis added) (citations omitted); In re Marriage of Weaver, 228 Ill.App.3d 609, 170 Ill.Dec. 207, 592 N.E.2d 643, 649 (1992) (the doctrine “should not be strictly applied to bar evidence when the most important consideration is the welfare of a child”); Boone v. Boone, 150 F.2d 153 (D.C.Cir.1945).

[¶ 27.] When it comes to balancing child protection against judicial economy in preventing repetitive claims, the Utah Court of Appeals summed up the problem well:

A more fundamental question, however, is whether the judicial doctrine of res judicata has any application in proceedings involving the welfare of children. Mindful of the unique nature of child custody and related proceedings, we share the concerns expressed by the courts which have recognized that a hyper-technical application of res judicata is improper in adjudications where the welfare of children is at stake. [Footnote omitted]. Considerations regarding a child’s welfare are rarely, if ever, static. In fact, it is more likely that the child’s environment is constantly evolving, thus justifying the court’s continuing jurisdiction. See Scott v. Department of Social Servs., 76 Md.App. 357, 545 A.2d 81, 90 (1988) (“child welfare seems to be a particularly appealing subject for periodic redetermination because children can be quickly and irretrievably scarred by negative circumstances”), cert. denied, 492 U.S. 910, 109 S.Ct. 3226, 106 L.Ed.2d 575 (1989).

J.J.T. and T.J.T., 877 P.2d at 163. See also In re Pardee, 190 Mich.App. 243, 475 N.W.2d 870, 874 (1991) (res judicata “cannot settle the question of a child’s welfare for all time”); In re V.B., 220 Neb. 369, 370 N.W.2d 119, 121 (1985) (same).

[¶28.] Although South Dakota has no case directly on point, we can find some guidance in the case of In re J.L.H., 299 N.W.2d 812, 815 (S.D.1980), rev’d on other grounds, In re J.L.H., 316 N.W.2d 650 (S.D.1982). There, in rejecting the mother’s res judicata argument, this Court held that “the trial court did not err in admitting evidence originating prior to the earlier adjudication.” Id. Apparently, this evidence could have been offered in the first adjudicatory hearing but was not. Nonetheless, this Court found that because there had been a finding of dependency and neglect in the first proceeding, res judicata did not bar admission of this evidence in the second adjudicatory proceeding.

[¶ 29.] Likewise, in this case the children were found abused and neglected as alleged in the first petition. Then, during the dispositional phase, the incident where the mother again exposed her child to the man who had molested her was not formally brought before the court after it announced that the case was going to be dismissed. A motion to reconsider was filed, but the judge telephoned the State’s Attorney, and, as a result, the State was left with the impression that the judge would not entertain the motion. In the second adjudicatory hearing before a new judge, this evidence was admitted. Perhaps the evidence should have been formally brought before the first court, even though the court indicated that the motion would not be successful, but simply because the State did not insist on a hearing should not preclude the new evidence from being used in the second proceeding. After all, there is no dispute that the judge indicated that she would not entertain it. A hyper-technical application of res judica-ta is simply not appropriate in these extraordinary circumstances. Even if we were to say that the attorneys blundered in failing to insist that the matter be heard by Judge Caldwell, the children’s welfare still demands that we place greater emphasis on their protection than on a judicial policy against repeat litigation. To hold otherwise is to turn our legal process for protecting abused and neglected children into a hollow ritual.

2. Adjudication of Abuse and Neglect

[¶ 30.] The mother next contends that the circuit court erred when it adjudicated the children abused and neglected. Specifically, the mother asserts that the court was not permitted to use matters litigated in the previous abuse and neglect proceedings as grounds for the current adjudication. Without those matters, she claims, the circumstances surrounding the February 12 incident do not provide sufficient evidence to support the court’s adjudication.

[¶ 31.] An adjudication of abuse and neglect must be supported by clear and convincing evidence. Interest of D.T., Jr., 2003 SD 88, ¶ 10, 667 N.W.2d 694, 698 (citing Matter of 502 N.W.2d 120, 123 (S.D.1993) (additional citations omitted)). We review the circuit court’s findings of fact under the clearly erroneous standard, giving due regard to the “court’s opportunity to judge the credibility of the witnesses.” Interest of T.G., 1998 SD 54, ¶ 16, 578 N.W.2d 921, 923 (citation omitted). We think it was within the court’s discretion to take judicial notice of the findings from the previous adjudication. D.T., Jr., 2003 SD 88, ¶ 10, 667 N.W.2d at 698 (citing J.A.H., 502 N.W.2d at 123; Matter of L.B., 416 N.W.2d 598, 599 (S.D.1987); Matter of R.Z.F., 284 N.W.2d 879, 881 (S.D.1979); In re K.D.E., 87 S.D. 501, 506, 210 N.W.2d 907, 910 (S.D.1973)). Moreover, because the court is required to act in the best interest of the children, it is not improper for a court to consider the circumstances that brought about the previous adjudication.

[¶ 32.] In this case, the court took judicial notice of the previous adjudication of abuse and neglect in Lincoln County. In its factual findings, it also repeated verbatim the findings in the previous adjudication. In doing so, the court was not relitigating the previous case. Rather, the court was using the prior findings to recite the children’s history so as to declare what was in the children’s best interests based on the entire relationship between the children and the mother. See R.Z.F., 284 N.W.2d at 881. Ultimately, however, it still remains our task to examine whether the circuit court erred when it adjudicated the children abused and neglected. Based on our review of the evidence we cannot say that we are left with a definite and firm conviction that a mistake was made. It is undisputed that T.O. sexually abused the mother’s children. The mother, nevertheless, continued to have a relationship with T.O. In fact, she admitted that she exposed J.S. to T.O. on February 12, 2004. Certainly, the evidence supports the court’s conclusion that clear and convincing evidence existed that the children “lacked proper parental care through the actions or omissions of [the mother] and were threatened with substantial harm[.]”

3. Reasonable Efforts

[¶ 33.] The mother also contends that the court abused its discretion when it held that DSS was excused from having to provide reasonable efforts toward family reunification. Under SDCL 26-8A-21, DSS “shall make reasonable efforts to make it possible for the child to return to the home of the child’s parents, guardian, or custodian.” However, under the Adoption and Safe Families Act (ASFA), DSS is not required to provide reasonable efforts when certain aggravating circumstances exist. SDCL 26-8A-21.1; see also Interest of J.S.B., Jr., 2005 SD 3, ¶ 1, 691 N.W.2d 611, 613; Interest of D.B., 2003 SD 113, ¶ 13, 670 N.W.2d 67, 71 (quoting New Jersey Div. of Youth and Fam. Serv. v. A.R.G., 361 N.J.Super. 46, 824 A.2d 213, 233 (2003)). Accordingly, “SDCL 26-8A-21.1 provides the trial court with discretion to identify the most egregious cases early in the process and dispense with futile efforts toward reunification.” D.B., 2003 SD 113, ¶ 15, 670 N.W.2d at 72.

[¶ 34.] In this case, the court held that reasonable efforts were not required Because the mother “[h]as exposed the child to or demonstrated an inability to protect the child from substantial harm or the risk of substantial harm, and the child or another child has been removed from the parent’s custody because the removed child was adjudicated abused and neglected by a court on at least one previous occasion.” SDCL 26-8A-21.1(7). In making this determination, the court found that the evidence clearly and convincingly established that the mother “still does not understand what it takes to keep her children safe from abuse.” The court noted that the children had been previously adjudicated abused and neglected. It further recognized that the mother admitted to exposing J.S. to T.O. when she visited him at approximately 10:30 p.m. in an unused parking lot by the John Morrell facility. Moreover, she advocated his innocence and testified that there would not be any harm in allowing contact between T.O. and the children. It was not until the hearing to determine if reasonable efforts were required that the mother then declared that she believed her children were abused by T.O. The court held that the mother’s statement at that time was “incredible” because it was “being made to placate [DSS], the special advocate and the [c]ourt.”

[¶ 35.] The mother, nevertheless, argues that the evidence does not establish that this is an egregious case with compelling circumstances because the court relied on impermissible evidence from the prior adjudication to determine that the aggravating factor in SDCL 26-8A-21.1(7) existed. She further contends that the court was collaterally estopped from admitting evidence from the previous adjudication, as it was a matter already litigated. We previously stated that it is within a court’s discretion to take judicial notice of a child’s prior adjudication of abuse and neglect. It would be untenable to conclude that while taking judicial notice of the prior case, the court is not then permitted to examine evidence from that action. To properly consider the best interests of the child, the entire historical record is crucial. Moreover, the court in this case did not make its own factual findings with respect to what occurred in the prior action. It incorporated the original findings verbatim. In consideration of the circumstances surrounding the previous adjudication along with the mother’s actions and testimony, the court declared that DSS was not required to provide reasonable efforts toward reunification. Based on our review of the evidence, we cannot say the court erred.

4. Least Restrictive Alternative

[¶ 36.] Finally, the mother argues that terminating her parental rights was not the least restrictive alternative because the conditions that led to the children’s removal no longer exist. “Our standard of review is ‘whether the trial court’s ultimate finding — that clear and convincing evidence indicated termination was the least restrictive alternative commensurate with the child’s best interests—was clearly erroneous.’” In re S.A. 2005 SD 120, ¶ 21, 708 N.W.2d 673, 680 (quoting In re A.S., 2000 SD 94, ¶ 19, 614 N.W.2d 383, 386 (quoting In re J.Y., 502 N.W.2d 860, 862 (S.D.1993))); see also SDCL 26-8A-27.

[¶ 37.] Before terminating the mother’s parental rights, the court properly weighed her fundamental right as a parent against the best interests of the children. Based on the evidence, the court concluded that preserving her parental rights “would materially jeopardize the best interests of the children and would compromise the duties and interest of the public to prevent the [subjection] of the children to future potential harm and detriment.” This, according to the court, is because the mother “still does not understand what it takes to protect her children and ... if [the mother] were forced to choose between [her] children and their abuser, [she] would choose their abuser.” Finding that potential harm could result, the court declared that under all the circumstances it “would be gambling with the future of the minor children if they were to be returned to the custody of the [mother].”

[¶ 38.] The mother’s fundamental rights as a parent deserve protection, but the children’s best interests remain the highest priority. Interest of T.G. and C.G., 1998 SD 54, ¶ 16, 578 N.W.2d 921, 923. There is no dispute here that the mother has repeatedly exposed her children to a man who had previously molested all three of them. Although she originally reported the sexual abuse, she later testified that the abuser was innocent and that there would be no harm to her children in remaining in contact with him. It is true that she finally stated that she believed T.O. did abuse her daughters, but the court found her late change of heart to be untrustworthy.

[¶ 39.] We have consistently held that children are not required to wait for their parents to acquire parenting skills. See Interest of P.K., 2006 SD 17, ¶ 24, 711 N.W.2d 248, 256 (citing Interest of A.D., 416 N.W.2d 264, 268 (S.D.1987)); People in Interest of M.J.B., 364 N.W.2d 921 (S.D.1985). “ ‘When it comes to something as important as the welfare of young children, promises of the parents to conform to the standard of care for their children which is expected in our society do not carry as much weight as their past actions of not properly caring for the children.’” A.S., 2000 SD 94, ¶ 21, 614 N.W.2d at 386-87 (quoting In re E.D.J., 499 N.W.2d 130, 137 (S.D.1993) (quoting In re J.M.V.D., 285 N.W.2d 853, 855 (S.D.1979))). We find no error in the circuit court’s conclusion that termination of the mother’s parental rights was the least restrictive alternative commensurate with the best interests of L.S., J.S., and C.S.

[¶ 40.] Affirmed.

[¶ 41JGILBERTSON, Chief Justice, and ZINTER, Justice, concur specially.

[¶ 42JSABERS, Justice and MILLER, Retired Justice, dissent.

[¶ 43JMILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

ZINTER, Justice

(concurring specially).

[¶ 44.] I concur and write only to note that, contrary to the dissent’s view, the affirmance of the trial court’s judgment does not create a new “exception” to the bar of res judicata in abuse and neglect cases. See infra ¶¶ 52 & 66. Rather, the judgment is properly affirmed because the fourth requirement of res judicata is not present; ie., there was no full and fair opportunity to litigate the most recent allegation of abuse of the children.

[¶ 45.] A well-established requirement of res judicata is that there must have been “a full and fair opportunity to litigate the issues in the prior adjudication.” Springer v. Black, 520 N.W.2d 77, 79 (S.D.1994) (emphasis added) (quoting In re Guardianship of Janke, 500 N.W.2d 207, 208-09 (S.D.1993) (citations omitted)). But, in this case, there is no dispute that the first trial judge (Judge Caldwell) declined to consider the new allegation that Mother again exposed the children to their molester. Thus, there was no full opportunity to litigate the new allegation.

[¶ 46.] Although the record is limited, there is no dispute that Judge Caldwell made an oral disposition that dismissed the abuse and neglect proceeding before the new incident occurred. There is also no dispute that after the new incident, Judge Caldwell was informed of the new evidence when the State filed a motion to reconsider. However, Judge Caldwell advised the State that she would not even entertain the motion and that the State should file a new petition.

[¶ 47.] Although Mother and the dissent have a different appellate view of these facts, the State offered the only evidence concerning these matters. Lincoln County State’s Attorney Thomas Wollman testified, without qualification, that after he filed the motion to consider the new allegation, Judge Caldwell initiated a telephone call to his office. From that conversation, he understood that “the court [Judge Caldwell] would not entertain the motion.” Wollman testified that Judge Caldwell indicated “that a new petition would be the correct way to proceed.” After considering all of the evidence concerning this matter in a contested hearing, Judge Lieberman adopted Wollman’s testimony. Judge Lieberman specifically found that Judge Caldwell informed Woll-man that she would not consider the matter and that the new allegation constituted a basis for a new petition. In finding of fact 17, Judge Lieberman found:

The court informed Lincoln County State’s Attorney, Tom Wollman, that it no longer had jurisdiction over the matter due to its order dismissing the Petition on January 30, 2004 and declined to hear the State’s Motion for Reconsideration.

And, in finding of fact 18, he found:

The Lincoln County State’s Attorney, Tom Wollman, was advised by the court that the incident on February 12, 2004, constituted facts for a new Abuse and Neglect Petition, as the previous abuse and neglect proceeding (Juv.02-83) was dismissed.

[¶ 48.] These findings cannot now be contested on appeal. First, there is no real dispute that, at Judge Caldwell’s direction, no final appealable order relating to the new incident was entered in the first proceeding. But more importantly, Mother conceded that these were different actions based on different allegations and that the State was not provided an opportunity to litigate the new allegation. Specifically, at the hearing on the motion to dismiss in front of Judge Lieberman, Mother argued that both actions (in both courts) alleged that she had failed to protect her children against a child abuser who had previously abused them. However, Mother conceded that the actions were not the same because the second action involved “almost the same” allegation but “that ... something ... happened after Judge Caldwell’s decision.” With respect to the new evidence, Mother further conceded that Judge Caldwell “knew about the motion to reconsider [based on the new evidence] and she refused to hear it.” (Emphasis added.) Mother even conceded that Judge Caldwell “would not give [the State] a hearing on their motion [to reconsider].” Consequently, on appeal, there is no room to now adopt new appellate facts and suggest that the State was given a full and fair opportunity to litigate the new evidence in the first action.

[¶ 49.] In the final analysis, there is no dispute that res judicata bars matters that could have been litigated in the prior proceeding. However, as Judge Lieberman specifically concluded, the “issue presented in the Minnehaha County Abuse and Neglect Petition was not actually litigated nor could [it] have been litigated” in the prior proceeding. Furthermore, considering Mother’s concessions and Judge Caldwell’s specific direction to the state’s attorney, this record supports the second trial court’s finding that the State did not have a full and fair opportunity to litigate the new allegation in the first abuse and neglect proceeding.

[¶ 50.] Because there was no full and fair opportunity to litigate the new facts concerning Mother’s subsequent failure to protect the children from their molester, those facts were not precluded from consideration in a second action. They were not precluded because if “[t]he facts which underlie many of the issues do not arise until [after the prior court proceeding,] the doctrine of res judicata ... does not apply.” Lewton v. McCauley, 460 N.W.2d 728, 731 (S.D.1990); see also supra n. 3. For all of these reasons, this case is governed by established requirements of res judicata.

[¶ 51.] GILBERTSON, Chief Justice, joins this special writing.

SABERS, Justice

(dissenting).

[¶ 52.] When a party loses and fails to appeal, the case is finished. Today, the majority opinion grants an exception to the State when it is seeking to terminate the parental rights of one of its citizens. The majority opinion sends a disturbing message: If at first you don’t succeed in terminating an individual’s parental rights, do not bother appealing to this Court, just keep filing additional petitions in different counties until you find a judge that will rule in your favor. This case presents a blatant example of forum shopping and I dissent.

[¶ 53.] Termination of parental rights is a custody proceeding. In re H.L.C. & B.A.C., 2005 SD 110, ¶ 24, 706 N.W.2d 90, 94 (citing In re M.C.S., 504 N.W.2d 322, 326 (S.D.1993)). Application of the doctrine of res judicata to custody actions is different than other proceedings, because custody actions are subject to modification. However, one thing is clear: before a custody decree can be modified, new facts must occur subsequent to the first decree.

[¶ 54.] In a custody dispute between parents, we require a substantial change in circumstances. See Masek v. Masek, 90 S.D. 1, 6, 237 N.W.2d 432, 434 (1976) (urging this Court to “be especially vigilant to avoid rewarding persistence in this type of case”); Huckfeldt v. Huckfeldt, 82 S.D. 344, 348, 146 N.W.2d 57, 59 (1966) (noting that an award of custody is res judicata under conditions existing when made because “any other interpretation would re-suit in endless litigation and continued uncertainty”). In In re N.J.W., we examined the effects of res judicata in subsequent abuse and neglect proceedings and determined “the same principle applies]....” 273 N.W.2d 134, 138 (S.D.1978) (citing Huckfeldt, 82 S.D. at 348, 146 N.W.2d at 59).

[¶ 55.] The parents involved in termination proceedings should be afforded a degree of certainty concerning their right to raise and care for their children. The best interests of the children are also served by the stability of a final judgment. Indeed, the nature of the State as an adversary coupled with the extreme consequences of termination should make us more vigilant in these types of cases. When the United States Supreme Court mandated a burden of clear and convincing-evidence in termination of parental rights cases, it noted:

The disparity between the adversaries’ litigation resources is matched by a striking asymmetry in their litigation options. Unlike criminal defendants, natural parents have no “double jeopardy” defense against repeated state termination efforts. If the State initially fails to win termination ... it always can try once again to cut off the parents’ rights after gathering more or better evidence. Yet even when the parents have attained the level of fitness required by the State, they have no similar means by which they can forestall future termination efforts.

Santosky v. Kramer, 455 U.S. 745, 764, 102 S.Ct. 1388, 1400, 71 L.Ed.2d 599 (1982). In holding that res judicata applies to subsequent termination cases, the Texas Court of Appeals remarked, “[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.” Slatton v. Brazoria County Protective Serv., 804 S.W.2d 550, 553 (Tex.App.1991).

[¶ 56.]We apply four factors in determining whether res judicata bars a subsequent action: (1) whether the issue decided in the former adjudication is identical with the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties are identical; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication. Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993) (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)). A prior final judgment or order that was rendered by a court of competent jurisdiction, “is conclusive as to all rights, questions, or facts directly involved and actually, or by necessary implication, determined therein.” Id. (quoting Raschke, 81 S.D. at 296, 134 N.W.2d at 297). A final judgment is conclusive without regard to whether the rendering court was correct at the time it made its decision. Id.

Whether the issue decided in Lincoln County is identical to the issue in the Minnehaha County petition.

[¶ 57.] The Lincoln County and the Minnehaha County petitions are identical in almost every respect. They both sought to adjudicate Mother’s children as abused and neglected. They both alleged that Mother had failed to protect her children from T.O. Finally, they both recite the sexual contact between T.O. and Mother’s children, as well as the fact that Mother married T.O. subsequent to his abuse of the children.

[¶ 58.] The only respect in which the petitions differ is that the Minnehaha County petition includes the Morrell incident. It also includes information that William Golden, the children’s attorney, gathered as a result of a conversation he had with one of the children concerning the Morrell incident. The State argued, and Judge Lieberman agreed, that the Morrell incident creates a different issue or at least new facts relevant to that issue. However, the record reveals that the Mor-rell incident was raised in the Lincoln County proceeding.

[¶ 59.] Before Judge Caldwell signed the order dismissing the Lincoln County proceeding, the State made a motion to reconsider. The State’s motion was based entirely on the Morrell incident, and included an affidavit by William Golden concerning the conversation he had with one of the girls about that incident. Apparently, Judge Caldwell did not believe the incident warranted changing her decision. Thus, the issues and the facts were identical in both the Lincoln and Minnehaha County proceedings. Judge Lieberman erred in determining that the Minnehaha County petition presented issues and facts that were not presented to Judge Caldwell.

Whether there was a final judgment on the merits.

[¶ 60.] The State argues that there was no final judgment on the merits in the Lincoln County proceeding because Judge Caldwell did not hold a hearing on the motion, or issue an order denying the motion. Instead, Judge Caldwell simply issued her order dismissing the entire proceeding. The State’s argument is unpersuasive for two reasons. First, the state’s attorney admitted that he could have scheduled a hearing in front of Judge Caldwell, but did not do so because he thought it would be “fruitless.” In other words, he did not bring the matter to a hearing because he thought the State was going to lose. Fear that a party will not prevail on an issue- has never excused them from raising it.

[¶ 61.] Second, we have held that a decree from a dispositional hearing is a final judgment. In the Matter of S.H., 337 N.W.2d 179, 180 (S.D.1983) (holding that it is the decree from the dispositional hearing that is “a final judgment” for purposes of appeal). If the State believed that Judge Caldwell erred in not reconsidering her oral ruling, it should have appealed the order of dismissal to this Court. Because the Morrell incident was presented to Judge Caldwell before she signed an order dismissing the proceeding, her order of dismissal constitutes a final judgment on the merits.

[¶ 62.] In Moore v. Michelin Tire Co., Inc., we noted that “pursuant to SDCL 15-6-58, an order becomes effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in his office.” 1999 SD 152, ¶ 46, 603 N.W.2d 513, 525 (quoting Mushitz v. First Bank of South Dakota, 457 N.W.2d 849, 857 (S.D.1990)). “Orders are required to be in writing because the trial court may change its ruling before the order is signed and entered.” Id. at ¶ 46 (quoting State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989)). When a trial court issues an oral ruling, it retains discretion to hear additional evidence prior to making its final order and reducing it to writing. Id. at ¶ 47. Judge Caldwell issued her written order of dismissal after the State made its motion to reconsider based on the Morrell incident.

Consequently, Judge Lieberman erred when he denied Mother’s motion to dismiss, claiming there was no final judgment on the merits in the Lincoln County proceeding.

Whether the parties are identical.

[¶ 63.] The State concedes that the parties to the Minnehaha County proceeding were identical to those involved in the Lincoln County matter.

Whether there was a fall and fair opportunity to litigate the Morrell incident in the Lincoln County proceeding.

[¶ 64.] To support its contention that there was no full and fair opportunity to litigate the motion for reconsideration, the State puts forth the same arguments it made pertaining to the final judgment on the merits. However, as mentioned above, the Lincoln County State’s Attorney admitted that he could have pressed the issue and demanded a hearing on the State’s motion. Moreover, the State had the opportunity to appeal the trial court’s decision, but chose not to do so. Instead, they filed a new petition in Minnehaha County, the day after Judge Caldwell signed her order dismissing the case. The State cannot argue now that it was deprived of a full and fair opportunity to litigate the Morrell incident.

[¶ 65.] The doctrine of res judicata should bar the Minnehaha County proceeding. If the State believed the trial court’s decision was in error, it should have appealed to this Court. When the State filed a new action in front of a different judge, it did precisely what the doctrine of res judicata seeks to avoid: forum shopping and relitigating issues and facts decided in a prior proceeding.

[¶ 66.] The majority opinion does not apply the four factors of res judicata to determine if the Minnehaha County proceeding was barred. Rather than attempt to pound a square peg in a round hole, the majority opinion cuts an entirely new hole in order to reach the result it believes is in the best interest of the children. Remarkably, this is done sua sponte as the State never raised the issue of whether res judi-cata applies to termination cases. Instead, the State only argued that the four elements of res judicata were not met.

[¶ 67.] The majority opinion cites several cases for the proposition that res judi-cata should not apply with full force in these types of proceedings. I agree. Children are not static and their lives are constantly changing. That is precisely why multiple abuse and neglect petitions can be filed when new facts come into existence after the disposition of a prior proceeding. The majority opinion quotes the Oregon Court of Appeals which noted:

[It is clearly wrong] to contend that, if neiv substantial material facts come into existence ivhich justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered or reconsidered in the later one.

Neuman, 49 Or.App. 221, 619 P.2d 901, 904-05 (1980) (emphasis added). I have no disagreement with the statement of the Oregon Court. However, the majority opinion cannot provide any new substantial material facts” that came into existence after Judge Caldwell’s order became final. The facts relied on by the State in the Minnehaha County proceeding were the same facts the State relied on in making its motion to reconsider in the Lincoln County proceeding.

[¶ 68.] I appreciate the majority opinion’s concern for the best interest of the children. Perhaps Judge Caldwell erred in failing to reconsider this case in light of the Morrell incident. However, this Court should not ignore the law in an attempt to reach a desired result. It is not relevant whether Judge Caldwell was “correct at [that] time or not” in determining whether her decision is res judicata. Moe, 496 N.W.2d at 595. Judge Caldwell’s decision was never appealed and was final in the absence of new facts.

[¶ 69.] I will not join an opinion that allows the State to fail to bring a hearing because it thought it was going to lose, fail to appeal, and then bring a new action in a different county, based on the same facts, the very next day. Judge Lieberman’s decision should be reversed and vacated.

[¶ 70.] MILLER, Retired Justice, joins this dissent.

      . A court later found that T.O. violated the conditions of his suspended sentence and he was scheduled for resentencing.

      . The dissent seems to equate the dismissal of the first abuse and neglect proceeding with a finding that the children were not found to be abused and neglected in that case. On the contrary, Circuit Judge Caldwell found that these children were abused and neglected. The dismissal was given only because Judge Caldwell later believed the mother had rehabilitated herself, a conclusion that afterwards proved false. Unlike the case of Matter of N.J.W., 273 N.W.2d 134 (S.D.1978), the State here is not attacking an earlier adjudication holding that prior allegations of abuse were not proved. Rather, the State is relying on the findings in the earlier case to support its position in the present case. Judge Caldwell found in the first adjudication that the mother repeatedly exposed her daughters to a man who she knew had sexually molested them. The second proceeding only added additional evidence to support this same finding. See In re R.Z.F., 284 N.W.2d 879, 881 (S.D.1979).

      . A close reading of the Court’s authorities reflects that each case applies a generally recognized requirement for, rather than an abuse and neglect exception to, the bar of res judicata. See State in Interest of J.T.T., 877 P.2d 161, 164 (Utah Ct.App.1994) (noting that through a strict application of "traditional res judicata analysis, uninfluenced by [exception] concerns, ... the prior neglect determination [was] no bar to the termination petition at issue.” The Utah court expressly saved for another day the difficult question of whether, and to what extent, res judicata actually applies in the context of termination of parental rights.); People in Interest of J.R., 711 P.2d 701, 703 (Colo.Ct.App.1985) (involving the same proceeding in which additional facts were presented to the trial court justifying a change in its conclusions from a previous hearing where it refused to terminate the parent-child legal relationship); Matter of Newman, 49 Or.App. 221, 226, 619 P.2d 901, 904-05 (1980) (concluding "if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding can be considered or reconsidered in the later one”); In re Juvenile Appeal (83-DE), 190 Conn. 310, 315, 460 A.2d 1277, 1280 (1983) (permitting the second petition because "the dismissal of the first petition was based on the trial court’s determination that the [first] petition, filed only four months after K was committed, was premature”); In re Pardee, 190 Mich.App. 243, 248, 475 N.W.2d 870, 873 (1991) (noting that "when the facts have changed or new facts develop, the dismissal of a prior termination proceeding will not operate as a bar to a subsequent termination proceeding”); In re Interest of V.B., 220 Neb. 369, 372, 370 N.W.2d 119, 122 (1985) (noting that evidence from the first proceeding could be used in conjunction with evidence from the time period after the first proceeding in determining that there was the requisite change of circumstances to terminate parental rights.)

      . There is absolutely no evidence to support the dissent's view that "apparently” Judge Caldwell "did not believe the [new] incident warranted changing her decision,” or that the state's attorney did not "bring the matter to a hearing because he thought the State was going to lose.” Infra ¶¶ 8-9. On the contrary, as is explained hereafter, the evidence is quite clear that Judge Caldwell dismissed the first proceeding without considering the new allegation because she believed that it should be presented in the new petition.

      . Q: Was there a point in time that the judge ever heard your motion for reconsideration on the record?
      A: No. Based upon the conversation I had with the Court it was my understanding — • my impression that the Court would not entertain the motion. In hindsight I guess I could have forced the issue and got a hearing scheduled, but the phone conversation left me with the impression that it would be fruitless and that a new petition would he the correct way to proceed.

      . The dissent faults the State for failing to appeal. However, because of Judge Caldwell's oral telephonic direction, there was no order, judgment, or even record from which the State could appeal. The only record of Judge Caldwell's disposition of the new evidence was developed before Judge Lieberman after the second petition was filed. And, it is easy to understand why the state’s attorney could not have scheduled a motion hearing on Judge Caldwell’s docket after she had just informed him that she would not consider the matter and that a new petition should be filed.

      . Several courts have followed this rationale. See In re V.B. & Z.B., 220 Neb. 369, 370 N.W.2d 119, 122 (1985) (holding “the [trial] court would have been barred in the instant case from using evidence prior to the [first] order as the sole basis for terminating parental rights”); In re A.S., M.S. & A.L.S., 12 Kan.App.2d 594, 752 P.2d 705, 711 (1988) (permitting a subsequent termination proceeding to go forward after being "satisfied that a change of circumstances occurred after [the first order had been issued]”); In re J.R. & T.R., 711 P.2d 701, 703 (Colo.Ct.App.1985) (holding “there should be ... sufficient additional facts to justify a trial court’s change in its conclusions from a previous hearing at which it refused to terminate the parent-child legal relationship”); In re John B., 20 Conn.App. 725, 570 A.2d 237, 240 (1990) (permitting a second termination proceeding when "new facts that justified the bringing of a second termination proceeding came into being after the dismissal of the first proceeding”); In re B.M., 1999 No 98-2175, WL 823851 *4 (Iowa App. Oct. 15, 1999) (unpublished opinion) (“if the state had brought the second petition to terminate appellant's rights and had alleged nothing new, there is no doubt that it would be barred by res judicata”); In re Newman, 49 Or.App. 221, 619 P.2d 901, 904 (1980) (upholding a termination when "there was at least one new substantial material fact ... which came into being between the first and second termination proceedings”).

      . The concurrence claims there is "absolutely no evidence to support” our view that Judge Caldwell did not believe the Morrell incident warranted changing her decision or that the state's attorney did not bring the matter because he thought he was going to lose. Additionally, the concurrence claims the State could not appeal because in the absence of a hearing, there was no record made on the issue. The concurrence is inaccurate on all three of its claims.
      The record is clear that Judge Caldwell received an affidavit setting forth the allegations surrounding the Morrell incident and the State's motion to reconsider. We know from the state’s attorney’s testimony that despite these allegations, Judge Caldwell was not going to entertain the motion for reconsideration. Furthermore, the state's attorney admitted that he could have "forced the issue and got a hearing scheduled, but the ... conversation left [him] with the impression that it would he fruitless." Thus, the state's attorney could have forced a hearing and made a record, but he did not do so because he did not believe Judge Caldwell was going to change her decision. Finally, all of this happened prior to Judge Caldwell issuing her final, written decision dismissing the State's claim.
      As an appellate court, we have always required parties to create and preserve records, regardless of whether they believed it would be "fruitless” at the trial level. Moreover, we have always required parties to appeal from an adverse ruling, not file a new action in a different county in front of a different judge. Our standards should be no less stringent merely because one of the parties is the State, and the subject matter of the litigation involves termination of parental rights.

      . Because Judge Caldwell's decision is res judicata without new facts, I would not reach issues two, three, and four,


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    Douglas C. KOLARIK, Appellant, v. CORY INTERNATIONAL CORPORATION, Italica Imports, and Tee Pee Olives, Inc., Appellees.
    No. 04-1647.
    Supreme Court of Iowa.
    Sept. 8, 2006.

      Steven E. Ballard and Patrick J. Ford of Leff Law Firm, L.L.P., Iowa City, for appellant.
    David L. Hammer and Angela C. Simon of Hammer, Simon & Jensen, Dubuque, for appellees.
   CARTER, Justice.

Plaintiff, Douglas C. Kolarik, appeals from an adverse summary judgment in his product-liability action against Cory International Corporation, Italica Imports and Tee Pee Olives, Inc., importers and wholesalers of olives imported from Spain. Plaintiff, relying on theories of negligence, strict liability, and breach of express and implied warranty, sought to recover damages from defendants for the fracturing of a tooth when he bit down on an olive pit or pit fragment.

The district court granted summary judgment for defendants as to each of plaintiffs theories of recovery. After reviewing the record and considering the arguments presented, we affirm the district court’s ruling with regard to plaintiffs theories of strict liability, and express and implied warranty, but conclude that, with respect to plaintiffs negligence claim based on an alleged failure to warn, there remains a genuine issue of material fact requiring denial of summary judgment on that theory of recovery.

Plaintiff has alleged that he opened a jar of pimento-stuffed, green olives, which had been imported and sold at wholesale by defendants. He alleges that he used several of these olives, which bore the label Italica Spanish Olives, in the preparation of a salad and, when eating the salad, bit down on an olive pit or pit fragment and fractured a tooth.

The motion papers reveal that defendants are importers and wholesalers of Spanish olives grown by various Spanish companies. They obtain bulk shipments of pimento-stuffed, green olives shipped in 150-kilogram drums to their plant in Norfolk, Virginia. There, the drums are emptied and the olives are washed and placed in a brine solution in glass jars suitable for retail sale under various names including Italica Spanish Olives. When defendants receive the olives, they are inspected for general appearance, pH, and acid level. Defendants rely on their Spanish suppliers for quality control of the pitting and stuffing process. Other facts that are significant in reviewing the summary judgment ruling will be discussed in our consideration of the legal issues presented.

I. Standard of Review.

Summary judgment rulings are reviewed for correction of errors of law. Mason v. Vision Iowa Bd., 700 N.W.2d 349, 353 (Iowa 2005). Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). Further considerations when reviewing a motion for summary judgment are summarized as follows:

“A factual issue is material only if the dispute is over facts that might affect the outcome of the suit. The burden is on the party moving for summary judgment to prove the facts are undisputed. In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record.”

Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004) (quoting Phillips v. Covenant Clinic, 625 N.W.2d 714, 717-18 (Iowa 2001)).

II. Strict Liability and Breach of Implied Warranty.

In sustaining defendants’ motion for summary judgment, the district court concluded that defendants were immune from plaintiffs strict-liability claim and implied-warranty-of-merchantability claim by reason of Iowa Code section 613.18(l)(a) (2001). That statute provides:

1. A person who is not the assembler, designer, or manufacturer, and who wholesales, retails, distributes, or otherwise sells a product is:
a. Immune from any suit based upon strict liability in tort or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product.

Iowa Code § 613.18(l)(a).

Plaintiff urges that section 613.18(l)(a) does not apply to his strict liability and breach-of-implied-warranty-of-merchantability claim. He contends that defendants were assemblers of the olives at issue here, thus removing them from the immunity provisions of the statute. The assembling occurs, he asserts, when defendants remove bulk olives from drums and repackage them in jars. We disagree that this repackaging process excludes defendants from the immunity granted by the statute.

We are convinced that the assemblers’ exclusion contained in section 613.18(l)(a) is aimed at those situations in which an assembling process has some causal connection to a dangerous condition in the product that gives rise to a strict-liability claim or a product condition that constitutes a breach of an implied warranty of merchantability. Because the repackaging of the olives by defendants did not contribute to the condition that underlies plaintiffs product-liability claim, defendants are afforded the immunity granted by the statute.

In the alternative, plaintiff argues that section 613.18(l)(a) does not apply because olives are not a “product” as that term is used in that statute. This argument is premised on his assertion that a product is something that has been produced by human action. He contends that no human action has produced the olives that defendants import and sell. In his written argument, plaintiff states this point as follows:

No producer can mix ingredients or connect component pieces in order to create an olive. The creation of an olive is a phenomenon of nature over which no human can exercise control or influence. Thus, olives are neither assembled, designed, nor manufactured.

To the contrary, we are reasonably certain that human effort does play a role in the growing and commercial distribution of olives. A standard legal dictionary defines “product” as follows:

Something that is distributed commercially for use or consumption and that is usually (1) tangible personal property, (2) the result of fabrication or processing, and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.

Black’s Law Dictionary 1225 (7th ed.1999). We are satisfied that agricultural commodities may be products as that term is used in section 613.18(l)(a). That statute' is aimed at situations giving rise to product liability actions, and food products may produce such claims. See Restatement (Third) of Torts: Product Liability § 7 (1998) (one engaged in the business of selling or distributing food products' is subject to liability for harm to persons caused by defective product). Consequently, the district court did not err in applying that statute to bar plaintiffs strict-liability and breach-of-implied-warranty-of-merchantability claims.

III. Express Warranty.

Plaintiff urges the words “minced pimento stuffed,” contained on the label of the jar of olives, constituted an express warranty that the olives had been pitted. Iowa Code section 554.2313(1) provides that an express warranty is created by the following:

a. Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain ....
b. Any description of the' goods which is made part of the basis of the bargain ....

Although both the express-warranty and implied-warranty provisions of the U.C.C. are drafted so as to determine the rights and obligations of the immediate parties to a sales transaction, the Code also provides:

A seller’s warranty whether express or implied extends to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty-

Iowa Code § 554.2318. Under the facts of the present case, plaintiff falls within this class of extended beneficiaries. Official comment 5 to accompanying U.C.C. section 2-607 (Iowa Code § 554.2607) states that remote buyers falling within this class of beneficiaries are not required to give the notice to seller that is otherwise required by section 554.2607(3)(a). This was the holding in McKnelly v. Sperry Corp., 642 F.2d 1101, 1107 (8th Cir.1981) (applying Iowa law).

The vice president of quality control for defendants testified in his deposition that olives must be pitted in order to be stuffed because the pitting process provides the cavity in which the pimento stuffing may be placed. This witness also testified that

[t]here’s a reasonable expectation that most of the pits would be removed, and there’s some expectation that it’s not a perfect world, and some of the pits or fragments may not be removed. I think anytime you’re dealing with natural products — see, this goes back to what we were talking about before. When the olives go into those machines, the machines do very well, but, you know, the olives have different shapes. And the reason they don’t get pitted right all the time is because of the different shapes of the olives.

The witness asserted that, because large quantities of pitted and stuffed olives are received in bulk form, no practical method of inspection exists. This witness’s statements concerning the inevitability of some pits or pit fragments being in the product was corroborated by plaintiffs own assertion that United States Department of Agriculture standards for pitted olives allow 1.3 pits or pit parts per one hundred olives.

Comment 7 of the official comments that accompany U.C.C. section 2-313, from which Iowa Code section 554.2313 is taken, states:

Of course, all descriptions by merchants must be read against the applicable trade usages with the general rules as to merchantability resolving any doubts.

U.C.C. § 2-313 cmt. 7. In discussing this official comment of the U.C.C. drafters, a federal court has declared: “[E]xpress warranties ... must be read in terms of their significance in the ... trade and relative to what would normally pass in the trade without objection under the contract description.” Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428 F.Supp. 364, 373 (E.D.Mich.1977). Given the evidence of how the defendants receive and resell these olives, it is unrealistic to impart to the description “minced pimento stuffed” the meaning that defendants are guaranteeing that the olives in the jar are entirely free of pits or pit fragments. It is much more realistic to interpret the description as only warranting that the particular jar of olives contains pimento-stuffed, green olives that would pass as merchantable without objection in the trade. Plaintiff has provided no evidence that the contents of the jar, taken as a whole, did not live up to this warranty. The district court did not err in denying plaintiffs claim based on express warranty.

IV. Negligence.

Much of the argument of both parties with regard to plaintiffs negligence claim turns on the decision in Brown v. Nebiker, 229 Iowa 1223, 296 N.W. 366 (1941). In that case, the plaintiffs decedent, a restaurant patron, swallowed a bone while eating a pork chop. The bone lodged in his esophagus and complications from the surgical removal that followed led to the patron’s death. The patron’s personal representative sued the restaurant owner on theories of implied warranty and negligence. At the trial, several witnesses testified that they had ordered pork chops at the same restaurant on the same evening and that the pork chops were served with the bone left intact.

The district court directed a verdict for the defendant on both the warranty and negligence claims. On appeal this court held that the common-law warranty that flows to patrons of a restaurant protected them against food that was unfit for human consumption and against having foreign objects in the food. The court held that pork chops served with the bones in were not unfit for human consumption and that, because bones are naturally contained in pork, they do not constitute a foreign object. On the negligence claim, we indicated that a restaurant owes no duty to its patrons to serve meat that is entirely free of bones that are natural to the product.

In seeking to overturn the district court’s grant of summary judgment on his negligence claim, plaintiff urges that, irrespective of its natural components, a food product may be marketed in a manner in which the consumer’s reasonable expectations will be that certain natural components of the product have been removed. He asserts that this is the case with respect to the pimento-stuffed olives at issue in the present case.

Defendants seek to uphold the district court’s summary judgment by espousing the virtues of Brown v. Nebiker’s pronouncements concerning consumer expectations as to the natural components of food products. They argue in their brief, “[sjurely there is no one who does not recognize, if he thinks at all, that natural products may well be present, such as bones in fish and meat and pits in olives and seeds in oranges.” .

We are unable to attribute any more to the Brown v. Nebiker decision than a recognition that, when pork chops are served in their natural state with the bone left in the meat, the presence of bone fragments must be anticipated. The opinion sheds little light on the requirements placed on a seller of food products in various stages of preparation or processing. We share the views expressed by the Wisconsin Supreme Court with regard to this matter:

The “foreign-natural” test ... does not recommend itself to us as being logical or desirable. It is true one can expect a T-bone in T-bone steak, chicken bones in roast chicken, pork bone in a pork chop, pork bone in spare ribs, a rib bone in short ribs of beef, and fish bones in a whole baked or fried fish, but the expectation is based not on the naturalness of the particular bone to the meat, fowl, or fish, but on the type of dish served containing the meat, fowl, or fish. There is a distinction between what a consumer expects to find in a fish stick and in a baked or fried fish, or in a chicken sandwich made from sliced white meat and in roast chicken. The test should be what is reasonably expected by the consumer in the food as served, not what might be natural to the ingredients of that food prior to preparation.

Betehia v. Cape Cod Corp., 10 Wis.2d 323, 103 N.W.2d 64, 68-69 (1960). Other courts espousing this view include Zabner v. Howard Johnson’s, Inc., 201 So.2d 824, 826 (Fla.Ct.App.1967); Phillips v. Town of West Springfield, 405 Mass. 411, 540 N.E.2d 1331, 1332-33 (1989); O’Dell v. DeJean’s Packing Co., 585 P.2d 399, 402 (Okla.Ct.App.1978). It is also the view expressed in Restatement (Third) of Torts: Product Liability section 7, comment b (product danger to be determined by reference to reasonable consumer expectations within the relevant context of consumption).

We find the principle applied by the Wisconsin court in Betehia with respect to restaurant food to be equally applicable to situations involving processed foods contained in cans or jars. In Bryer v. Rath Packing Co., 221 Md. 105, 156 A.2d 442 (1959), a child’s throat was injured by a chicken bone while she was eating chow mein in a school cafeteria, which had purchased the chow mein in sealed cans from the defendant food processor. The trial court directed a verdict in favor of the defendant. In reversing that judgment, the Maryland Court of Appeals stated:

The obligation of the packer of food to the ultimate consumer is to exercise such care in its preparation that the product will not cause injury to the consumer, and the amount of care that is required is commensurate with the danger to the life or health of the consumer that may foreseeably result from such lack of care. In the instant case the packer of the chicken set its own standard of care and increased the necessary amount of care by expressly representing on the cans sold that the product was ready to serve and boned. By its advertising it was saying to the ultimate consumer that this was chicken from which the bones had been removed, and this assurance which it must have foreseen would be relied on (as indeed it was in the case before us, as the cafeteria manager explicitly testified), required it to exercise as much care as would enable users to rely with reasonable safety on the assurance. This is not to say that the packer was an insurer, for it is clear, and agreed, that in the form of action brought it is not. The question is whether due care was exercised under the circumstances.

Bryer, 156 A.2d at 446. Similar reasoning was applied in Wood v. Waldorf System, Inc., 79 R.I. 1, 83 A.2d 90, 93 (1951), a case involving a chicken bone in a can of chicken soup.

We are satisfied that, in the case of processed foods, consumers may develop reasonable expectations that certain components of food products in their natural state that serve to impede human consumption will be removed. Specifically, we believe that the purchaser of pimento-stuffed olives may reasonably anticipate that the olive pits have been removed. We need not decide whether this expectation would create an implied warranty of merchantability because such a claim is precluded by statute in the present case. We are convinced, however, that a seller of stuffed olives must be cognizant that consumers will assume that the olives will be free from pits and act on that assumption in consuming the product. Consistent with that expectation, a seller must exercise reasonable care to assure that this expectation is realized. The district court erred in rejecting plaintiffs negligence claim by reliance on the natural component principle that was applied in Brown v. Nebiker.

In reviewing the motion papers to ascertain whether issues of material fact otherwise remain concerning plaintiffs negligence claim, we are satisfied that it does not appear that defendants were in any manner negligent in the processing of the olives that contained the pit that caused harm to the plaintiff. We conclude, however, that a genuine issue of material fact does exist with respect to plaintiffs claim that defendants were negligent in not warning against the possible presence of pits or pit fragments in the jar of olives.

Defendants’ quality control officer testified in his deposition that the pitting process is not one hundred percent effective. He indicated that the presence of an occasional pit or pit fragment in the stuffed olives is inevitable because the machine that does the pitting will fail to remove a pit if the olive has an abnormal shape. Given this circumstance, we conclude that a trier of fact might find that reasonable care by a wholesale seller of stuffed olives would include providing a warning on the label that pits or pit fragments might be encountered. A claim based on that theory should have survived summary judgment.

We have considered all issues presented and conclude that the district court’s ruling dismissing the strict-liability claim and the claims based on express and implied warranty should be affirmed. The ruling dismissing the negligence claims on theories other than a failure to warn is also affirmed. We reverse the ruling dismissing the negligence claim based on a failure to warn and remand the case to the district court for further proceedings on that claim.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Te Pe SA, a Spanish company, was named as an additional defendant in the district court action, but no jurisdiction was obtained over that entity.

      . The defendants are affiliated companies. Plaintiff has not attempted in the district court or on appeal to identify the role that these entities individually played in placing the olives in the stream of commerce.

      . These beneficiaries do not include remote buyers seeking economic-loss damages. Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa 1995); Beyond the Garden Gate, Inc. v. Northstar Freeze-Dry Mfg., Inc., 526 N.W.2d 305, 309 (Iowa 1995).


author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST William F. JONES, a Minnesota Attorney, Registration No. 146444.
    No. A06-1056.
    Supreme Court of Minnesota.
    Sept. 12, 2006.
   ORDER

On July 5, 2006, this court suspended respondent from the practice of law for a period of 60 days. Respondent has filed an affidavit stating that he has fully complied with the terms of the suspension order and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent William F. Jones is reinstated to the practice of law in the State of Minnesota subject to his successful completion of the professional responsibility portion of the state bar examination by July 5, 2007.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: PER CURIAM.

text:
    Peter I. IDUSOGIE, Petitioner, v. Mary KIFFMEYER, Secretary of State of Minnesota, Respondent.
    No. A06-1516.
    Supreme Court of Minnesota.
    Sept. 14, 2006.

      Peter I. Idusogie, Minneapolis, MN, pro se.
    Mike Hatch, State Attorney General, Christie B. Eller, Assistant Attorney General, St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

By a letter dated July 21, 2006, the office of Secretary of State Mary Kiffmeyer notified petitioner, Peter I. Idusogie, that his nominating petition for the office of United States Senator from Minnesota lacked the number of signatures “required by law.” After receiving this letter, Iduso-gie filed a petition with our court under Minn.Stat. § 204B.44 (2004) requesting an order directing the secretary of state to place his name on the ballot for the September 12, 2006 primary election, and the November 7, 2006 general election. Iduso-gie alleges in his petition that the secretary of state wrongly rejected his nominating petition and wrongly prevented him from filing additional signatures in support of his candidacy. This opinion confirms our order filed on August 22, 2006, denying Idusogie’s petition.

Candidates for elective office in Minnesota must file with the secretary of state an affidavit of candidacy under Minn.Stat. §§ 204B.03 and 204B.06 (2004). In addition, candidates seeking the nomination of a “minor” political party and candidates running independently of any political party must file a “nominating” petition. Minn.Stat. § 204B.03. The requirements for a nominating petition are set forth in MmmStat. §§ 204B.07 and 204B.08 (2004). Pertinent to this case is the requirement that the number of signatures on a nominating petition for United States Senator be “one percent of the total number of individuals voting in the state at the last preceding state general election, or 2,000, whichever is less.” Minn.Stat. § 204B.08, subd. 3(a) (2004). Minnesota Statutes § 204B.08, subd. 1 (2004), further requires that nominating petitions “shall be signed during the period when petitions may be filed as provided in section 204B.09,” that is, during the 14-day filing period, between the 70th and the 56th day before the day of the state primary election. Minn. Stat. § 204B.09, subd. 1 (2004).

On July 18, 2006, Idusogie filed with the secretary of state an affidavit of candidacy for United States Senator, together with a nominating petition bearing approximately 1,000 signatures. Idusogie also sought to use his nominating petition in place of the $400 filing fee required under Minn.Stat. § 204B.11, subd. 1(b) (2004), as is permitted under MinmStat. § 204B.11, subd. 2 (2004). It is undisputed that Idusogie’s nominating petition bore far fewer than the 2,000 signatures required to nominate Idusogie for the office of United States Senator or the 2,000 signatures required under Minn.Stat. § 204B.11, subd. 2(a) (2004), on a petition in place of the filing fee.

Idusogie asserts he should be permitted to add additional signatures to his nominating petition because there is no set time limit for obtaining signatures on petitions filed in place of the required filing fee under Minn.Stat. § 204B.11, subd. 2. We reject Idusogie’s argument for three reasons. First, Minn.Stat. § 204B.08, subd. 1, unequivocally requires that nominating petitions be signed during the 14-day filing period, which in 2006 ran from July 4 to July 18. As a result, section 204B.08 bars Idusogie from using signatures gathered after the end of the filing period to satisfy the requirements of a nominating petition. Second, Minn.Stat. § 204B.09, subd. 1(c) (2004), unequivocally bars the secretary of state from accepting a petition after 5 p.m. on the last day of filing for elective office. As a result, even if Idusogie had additional signatures obtained during the filing period, section 204B.08 bars the secretary of state from accepting those signatures after 5 p.m. on the last day of filing, whether they are considered signatures on a nominating petition or a petition in place of the filing fee. Finally, although Minn.Stat. § 204B.11, subd. 2, allows an independent candidate like Idusogie to use his nominating petition as a petition in place of the filing fee, nothing in chapter 204B allows a candidate to use the petition in place of the filing fee as a nominating petition.

Idusogie also asks us to declare unconstitutional the laws governing nominating petitions for candidates who do not seek the nomination of a major political party. Because Idusogie’s request may implicate both the guarantee of equal protection under the Fourteenth Amendment and the right of association under the First Amendment, we will address his claim under both theories.

Idusogie’s claim could be construed to assert that Minn.Stat. §§ 204B.04 and 204B.08 (2004) are unconstitutional because they infringe upon his equal protection rights under the Fourteenth Amendment by imposing a burden on him not also imposed on candidates seeking the nomination of major political parties. But we conclude that we need not reach Iduso-gie’s equal protection claim because, contrary to Idusogie’s argument, Minn.Stat. § 204B.09 (2004) imposes the same filing deadlines on all candidates, and Minn.Stat. § 204B.09, subd. 1(c), bars the secretary of state from accepting late petitions and affidavits from all candidates, whether they seek the nomination of major political parties, minor political parties, or run as independent candidates.

Idusogie’s argument could also be construed as a claim that the requirements of a nominating petition violate his First Amendment right of association. We note that the United States Supreme Court has recognized the interest of the state in regulating the number of candidates on the ballot to avoid undue voter confusion. Am. Party of Texas v. White, 415 U.S. 767, 782 n. 14, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). As a result, the Court has recognized the right of the state to require “some preliminary showing of a significant modicum of support” before putting a candidate’s name on the ballot. Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). In light of the foregoing case law and for reasons similar to those addressed in Idusogie’s equal protection claim, we conclude that under the facts and circumstances of this ease, we need not address this issue because Iduso-gie has failed to articulate a colorable claim that his First Amendment right of association has been violated.

For the foregoing reasons, we conclude that under Minnesota law a candidate for elective office may not file additional signatures for a nominating petition and/or a petition filed in place of the required filing fee after 5 p.m. on the last day for filing for elective office. Therefore, we hold that the secretary of state properly rejected Idusogie’s nominating petition because it lacked the number of signatures required under Minn.Stat. § 204B.08, subd. 3(a).

Petition denied.

      . After initially counting 1,070 signatures on Idusogie's nominating petition, employees in the secretary of state’s office ultimately determined that Idusogie had submitted 995 signatures, of which 916 appeared to be valid.