author: KONENKAMP, Justice.

text:
    2005 SD 125
    The PEOPLE of the State of South Dakota in the Interest of T.I. and T.I., Minor Children, and C.I. and D.B., Respondents, and Sisseton-Wahpeton Sioux Tribe and Yankton Sioux Tribe, Intervenors.
    Nos. 23581, 23587 and 23597.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 7, 2005.
    Decided Dec. 21, 2005.

      Christy Griffin Serr, Aberdeen, for appellant Mother C.I.
    William D. Gerdes, Aberdeen, for appellant Father D.B.
    Kelly Marnette, Aberdeen, Lawrence E. Long, Attorney General, for appellees Minor Children.
    Ann M. Holzhauser, Assistant Attorney General, Pierre, for appellee State of South Dakota.
   KONENKAMP, Justice.

[¶ 1.] In this abuse and neglect proceeding, governed by the provisions of the Indian Child Welfare Act (ICWA), the circuit court declined transfer of jurisdiction to tribal court and terminated the mother and father’s parental rights. We affirm.

Background

[¶ 2.] The mother and father are the biological parents of T.I. (Son 1), born August 18, 1997, and T.I. (Son 2), born March 2, 1999. At the commencement of these proceedings, Son 1 was a member of the Yankton Sioux Tribe (YST) and Son 2 was eligible for enrollment in YST. Aso, both children were eligible for enrollment, but were not actually enrolled, in the Sisseton-Wahpeton Sioux Tribe (SWST).

[¶ 3.] The state filed two abuse and neglect petitions against the mother and father regarding these children. This appeal concerns the second petition, but the facts surrounding the first are relevant. On February 15, 2002, Son 2, then age two, was spotted walking alone on Main Street in Aberdeen at 10:15 p.m. When law enforcement officers found him, he had no coat and had only slippers on his feet. The mother was questioned and stated that she had an apartment, but no electricity, food, or furniture. She also disclosed her use of alcohol. The Department of Social Services (DSS) substantiated its concerns and the first petition alleging abuse and neglect was filed. The children were placed in protective custody and were later placed with the paternal grandmother in Waubay in March 2002.

[¶ 4.] The parents denied the allegations of abuse and neglect and an adjudicatory hearing was set for June 2002. YST and SWST were given notice and SWST petitioned to transfer in May 2002. The adjudication was continued to October, but at the June hearing the mother opposed transfer to SWST. She requested that her children be removed from the grandmother’s home, claiming alcohol was being used excessively there. Transfer to SWST was denied and the children were returned to foster care with DSS. The adjudicatory hearing concerning this first petition was held on October 9, 2002, and the circuit court declined to find the children abused and neglected. The first petition was dismissed and the children were returned to the mother and father.

[¶ 5.] The remaining factual and procedural background pertains to the second petition and the resulting appeal. DSS became involved again in September 2003, after it had received “reports of domestic violence, lack of food, and excessive alcohol consumption in the home.” The allegations were confirmed by the mother, who indicated that there “had been prior incidents of severe domestic violence by [the] father towards her [and] she had obtained a protection order against him in tribal court.” She also claimed that the father drank frequently. Particularly significant was the report from Son 1, then age six, that there had been a physical altercation between the mother and father after they had been drinking and that there was “blood all over.” This violent dispute between the parents occurred at a motel and was described by Son 1, who said that the mother wanted to go to the doctor, but the father would not let her. At the time of this altercation, the parents were not living together. Instead, the mother had been living with her boyfriend (A.S.), who also drank with the mother, as Son 1 described, “every night.”

[¶ 6.] As a result, DSS placed the children in protective custody, filed a second abuse and neglect petition, and gave notice to both YST and SWST. On September 23, 2003, the mother regained physical, but not legal, custody of both children. DSS, however, was concerned because of the mother’s “history of moving and failing to follow-through with services, her conduct in exposing the children to excessive alcohol and domestic violence, her back and forth relationship between [the] father and A.S., and her lack of financial stability.” Thus, her continued custody of the children depended on the mother following prescribed conditions.

[¶ 7.] She worked with home based services, as required, and she also received her chemical dependency evaluation. She was recommended for outpatient treatment. But the mother violated the requirement that she not leave Brown County, when she took the children to Sisseton and reconciled with the father. Nevertheless, the court allowed the mother and father to have continued custody of the children and DSS worked with the mother to develop a new case service plan to in-elude both parents. Specifically, the mother and father “were asked to work with NEMHC Homebased services, obtain psychological evaluations, get drug and alcohol evaluations and follow the recommendations.” In addition, the father was required to take anger management classes.

[¶ 8.] An adjudicatory hearing for the second petition was held on January 27, 2004. Both parents admitted the allegations and the children were adjudicated abused and neglected. The parents retained physical custody of the children and agreed to work on their case plan. During the next couple of months, DSS documented the following: the mother began her outpatient treatment, but it was not working and she was referred to inpatient treatment; Son 1 claimed that the mother and father left him and his brother alone at times; the mother was not employed; the mother was not going to AA, but the father was attending; the mother claimed that the father was drinking and wanted him out of the home. Eventually, the mother wanted the father to move back home, so in early April 2004 a meeting was held to establish another case service plan in order for the father to return home. In addition to the new plan, DSS actively worked with the mother and father. Specifically, “DSS made referrals to NADRIC for alcohol evaluations, assisted the family in paying for gas and rent, provided transportation, and worked with NEMHC in looking for funding to get the father medication for his depression and anger.” However, both the mother and father “exhibited limited cooperation in completing the listed tasks.”

[¶ 9.] In April 2004, the mother and father were threatened with eviction “due to concerns regarding the living conditions of their apartment.” When the mother contacted DSS for money, she was told she could stay at a women’s shelter and keep her children. Instead, the mother and father, without permission, moved with the children to Lake Andes. At a hearing on April 28, 2004, the mother “asked the court to allow her and the children to remain in Lake Andes with the promise that she and the father would work with the Lake Andes area DSS office and comply with the prior nine item agreement.” Even though they had violated the court order prohibiting them from leaving Brown County, the court and DSS agreed to work with the mother and father on the condition that they remain in contact with the local DSS office and meet their established agreements under the case plan.

[¶ 10.] Initially, the parents contacted the YST ICWA director, Ray Cournoyer, and requested services, but none were available. He told them to contact the Lake Andes DSS; however, they did not do so until May 27, 2004. Essentially, DSS was unaware of their whereabouts in Lake Andes from April 26 to May 28, 2004. DSS was finally able to locate the mother when a worker drove by a residence of the mother’s relative and noticed several boys playing- in the yard and stopped to inquire and the mother came out to introduce herself. While talking with the DSS worker, the mother expressed concern because “she did not know how long the relative’s food would last.” DSS responded by offering the mother various services and by bringing the family food. In addition, the mother and father were directed to continue to work toward their agreed service plans and to maintain contact with the local DSS office. They did neither.

[¶ 11.] At a review hearing on June 2, 2004, both failed to appear. And they had failed to maintain contact with their attorneys. As a result, the court held the mother in contempt, issued a warrant for her arrest, and ordered physical custody of the children be returned to DSS. However, DSS could not locate the mother and father. It was not until June 24, 2004, that DSS learned the parents had left Lake Andes for Oregon taking the children with them. When law enforcement officers and local social service workers were notified in Oregon, the children were placed in temporary custody until a South Dakota DSS worker flew to Oregon and brought the children back to South Dakota. The parents did not return to South Dakota. At a review hearing in July 2004, the circuit court relayed to the mother that she needed to return if she wanted to participate in the proceedings. At this same hearing, both YST and SWST sought to transfer the case to their respective tribes.

[¶ 12.] Based on the tribes’ requests, a transfer hearing was held on August 13, 2004. SWST appeared through Evelyn Pilcher, a non-attorney ICWA representative for SWST, with thirteen years experience. Ray Cournoyer, a non-attorney ICWA representative for YST, with two years experience, appeared on behalf of YST. At the hearing, YST withdrew its previous request for transfer in order to permit the case to be transferred to SWST. For its part, SWST sought transfer because it claimed that both children were eligible for enrollment. But, because Son 1. was already an enrolled member of YST, his eligibility for enrollment in SWST did not give SWST jurisdiction over Son 1.® In addition to this jurisdictional problem, the court also considered the timeliness of SWST’s request, finding it to be at the advanced stage of these proceedings. Consequently, the court denied the request for transfer to SWST finding good cause to the contrary. Nonetheless, the court placed the children in temporary physical custody with their aunt, A.I., on the SWST reservation.

[¶ 13.] In the meantime, the mother and father returned from Oregon, and DSS continued in its attempt to provide services to them. When the mother was arrested for a probation violation, DSS arranged for visitation. Then when she was released from jail, DSS offered the mother further services, such as arrangements for another alcohol evaluation and a psychological evaluation. But the parents moved yet again, this time to North Dakota. DSS had encouraged the mother to “stay in South Dakota at the women’s shelter in order to be reunited with her children quickly.” However, she decided to move to Bismarck, North Dakota, to be with the father.

[¶ 14.] DSS continued to actively work with the mother and father by arranging to coordinate services through North Dakota. In response, the mother “represented that she had completed her alcohol assessment and would be attending outpatient treatment.” The father informed DSS he was working with a United Tribal College social worker to make arrangements for anger management classes and that he was staying in a “no-drink” dorm. But when a review hearing was held on November 10, 2004 in South Dakota, neither the mother nor the father appeared. And the court explained that it was not DSS’s duty to accommodate the parents after they moved away, but ordered DSS to make arrangements to facilitate at least one visit between the parents and the children. Thereafter, DSS offered the parents reimbursement for travel expenses and also purchased the parents a bus ticket they could use at their convenience. Neither parent accepted these offers, nor did they visit their children until shortly before the final dispositional hearing. Also, while they were in North Dakota, the local social service office reported that the parents were not working on any of their case plan goals.

[¶ 15.] The final dispositional hearing was held on February 3, 2005, and the circuit court terminated the parental rights of both parents. It concluded that the parents failed to avail themselves of the services offered; they made little significant progress toward completing the goals set by DSS and the court; and there was little likelihood that the conditions that existed at the time of the petition would be remedied. Thus, the court concluded “beyond a reasonable doubt” that the continued custody of the children with the mother and father would likely “result in serious emotional or physical damage to the minor children” and termination of their parental rights was the “least restrictive alternative available commensurate with the best interests of these minor children.”

[¶ 16.] In their appeal, the parents’ issues can be summarized as follows:

(1) Whether the trial court erred in denying transfer of jurisdiction to either the Yankton Sioux Tribe or the Sisseton-Wahpeton Sioux Tribe.
(2) Whether the trial court erred in finding that terminating the parents’ parental rights was the least restrictive alternative available and that it was in the best interest of the children under SDCL 26-8A-26.
(3) Whether the trial court erred in finding beyond a reasonable doubt and through qualified expert testimony that continued custody of the minor children by the mother and father would result in serious emotional or physical damage to the minor children so that termination was appropriate under ICWA.

By notice of review, the children raise the following issue:

Whether the trial court erred in finding the parents have a right to refuse to testify at the final dispositional hearing.

Analysis and Decision

1. Transfer to Tribal Court

[¶ 17.] Before we discuss the merits of this question, we first address the proper burden of proof applicable to motions to transfer under ICWA. We have heretofore approved the abuse of discretion standard in deciding whether good cause existed not to transfer. This means that circuit courts have discretion whether to grant or deny these motions. Abuse of discretion is the most relaxed standard. Yet, absent good cause to the contrary, federal law creates presumptive tribal court jurisdiction in foster care placement and termination of parental rights proceedings. 25 U.S.C. § 1911(b). The burden of establishing good cause to deny a transfer is upon the party opposing the transfer. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67.586, 67591 ¶ 0.3(d). If the presumption is in favor of tribal jurisdiction, then mere discretion to override an ICWA transfer is inconsistent with congressional intent. See In the Interest of D.M., 2004 SD 90, ¶ 36, 685 N.W.2d 768, 777 (Konenkamp, J., concurring specially). In enacting ICWA, Congress wanted to have Indian tribes determine custody issues involving Indian children. In re G.R.F., 1997 SD 112, ¶ 14, 569 N.W.2d 29, 32 (citation omitted). It is true that some other courts have used the abuse of discretion standard. However, the better reasoned decisions hold that the determination must be supported by clear and convincing evidence of good cause. In re A.P., 25 Kan.App.2d 268, 276, 961 P.2d 706, 713 (1998) (clear and convincing standard); In re Adoption of S.W., 41 P.3d 1003, 1013 (Okla.Civ.App.2001) (same); In re M.E.M., 195 Mont. 329, 335, 635 P.2d 1313, 1317 (1981). Considering the firm congressional intent behind ICWA, the standard most consistent with the Act requires clear and convincing evidence of good cause for a state court to refuse to transfer to tribal court. Today we amend the burden on the parties opposing these motions to clear and convincing, but this standard will have prospective application only.

[¶ 18.] In order for a transfer to proceed under ICWA, a tribe must be designated as the “Indian child’s tribe” because an Indian child, even though eligible for enrollment in more than one tribe, can only have one tribe exercising jurisdiction for purposes of ICWA. See 25 U.S.C. § 1903(5); see also Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ B.2 (Commentary) (stating that “there obviously can be only one tribe to adjudicate the case”). Also, the federal guidelines interpreting ICWA state that if a “child is a member of only one tribe, that tribe shall be designated the Indian child’s tribe even though the child is eligible for membership in another tribe.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ B.2(e).

[¶ 19.] Once jurisdiction has been established, the issue of transfer of jurisdiction is controlled by 25 U.S.C. § 1911(b), which requires transfer of the case to a tribal court with jurisdiction “absence good cause to the contrary.” See In re M.C., 504 N.W.2d 598, 600 (S.D.1993). As we have said, the burden is on the party opposing transfer to prove good cause to the contrary. In re J.L., 2002 SD 144, ¶ 12, 654 N.W.2d 786, 790 (citation omitted). However, what circumstances constitute “good cause to the contrary” is not defined by ICWA. See id. Thus, we turn to the federal guidelines interpreting “good cause to the contrary” under ICWA, guidelines previously applied by this Court. Id. (citing Guidelines for State Cmtrts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ C.3(b)); see also In the Matter of J.C.D., 2004 SD 96, ¶ 11, 686 N.W.2d 647, 649.

[¶ 20.] The record reflects that YST moved to intervene on October 28, 2003, informing the court that Son 1 is an enrolled member of YST and that Son 2 is eligible for enrollment. YST continued to stay involved and on May 11, 2004, it moved to transfer jurisdiction. YST further informed the court on June 22, 2004, after a review hearing in tribal court, that YST accepted jurisdiction over both children. SWST, sent correspondence, received on March 5, 2004, stating that neither child was enrolled or eligible for enrollment in SWST. However, on July 13, 2004, after a question of paternity was resolved, SWST moved to transfer, now alleging that both children were eligible for enrollment in the tribe.

[¶21.] Because both the state and the children objected to transfer to either YST or SWST, a hearing was held on August 13, 2004. A representative from both YST and SWST appeared on behalf of their respective tribes, and YST withdrew its request for transfer, asking that jurisdiction be transferred to SWST. Accordingly, the circuit court considered the request, but denied transfer to SWST, finding good cause to the contrary.

[¶ 22.] Based on our review of the record, we conclude that SWST did not have jurisdiction over Son 1. The circuit court found that Son 1 is an enrolled member of YST and YST is the “Indian child’s Tribe” as defined by ICWA. As a result, SWST, the only tribe requesting transfer, cannot exercise jurisdiction over Son 1. The judge concluded that the “only court that actually has jurisdiction by law over both children is the state court.” This alone is good cause to deny transfer to SWST. Moreover, the ICWA expert testified that these children should be kept together and not be separated. Thus, under either the abuse of discretion standard or the clear and convincing standard, the circuit court did not err when it denied transfer of jurisdiction to the SWST. Because YST voluntarily withdrew its request for transfer, we need not address its motion.

2. Reasonable Efforts under SDCL 26-8A-26

[¶ 23.] In order to terminate the mother and father’s parental rights, SDCL 26-8A-26 requires that “all reasonable efforts have been made to rehabilitate the family, that the conditions which led to the removal of the child still exist, and there is little likelihood that those conditions will be remedied so the child can be returned to the custody of the child’s parents.... ” In addition, the circuit court must find that “ ‘termination was the least restrictive alternative commensurate with the child’s best interests....’” In the Matter of 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); In re A.H., 421 N.W.2d 71, 75 (S.D.1988)).

[¶ 24.] The parents contend, first, that the conditions that existed at the time of removal do not still exist, and, second, that termination of their parental rights was not the least restrictive alternative. They maintain that the only “condition” that existed was a physical altercation the parents had while they were drinking and no evidence was presented indicating “the domestic violence or drinking has continued.” While this was one reason for removing the children, the circuit court also considered the parents’ persistent inability to provide for their children. Furthermore, the court considered conditions identified after the children were in the state’s custody such as: “the parents moving from place to place, [and] not having jobs or a stable home....” The court incorporated a stipulated time line into its findings, demonstrating the parents’ continuing failure to provide for the needs of their children. Even with assistance from DSS with rent, living expenses, and basic necessities such as food and clothing, the parents’ inability to provide for their children persisted as they lived a transient lifestyle, repeatedly in violation of DSS recommendations and court orders.

[¶ 25.] The record supports the circuit court’s finding that “reasonable efforts have been made to rehabilitate the family and to reunite the minor children” with their parents by DSS. It is undisputed that DSS worked with the mother and father even after they violated court orders. In sum, DSS has been working with and assisting this family since 2002. During this time, it was apparent to the circuit court that “there is little likelihood that these conditions will be remedied to allow the children to be returned to the custody of the children’s parents.” In particular, both parents failed to follow- the recommendations of their chemical dependency evaluations; the mother failed to complete her psychological evaluation and abide by any recommendations; the father failed to attend or complete any anger management counseling; and both parents failed to visit their children regularly, keep in contact with DSS on a consistent basis, and follow the court’s orders.

[¶26.] When “efforts to assist the parent through the use of social services proves unavailing, the trial court is justified in terminating parental rights.” In re S.L.H., 342 N.W.2d 672, 677 (S.D.1983) (citing In re S.S., 334 N.W.2d 59, 62 (S.D.1983)). Accordingly, we see no error in the court’s finding that the evidence supports the conclusion that the conditions that existed at the time of removal of the children still exist under SDCL 26-8A-26.

[¶ 27.] We next consider whether terminating parental rights was the least restrictive alternative. Based on the parents’ lack of compliance and their inability to provide for their children, the circuit court found the parents unfit and that it was not in the best interests of the children that they return to their parents. The circuit court believed the conditions that still exist have little likelihood of being remedied. Thereafter, the court balanced the parents’ fundamental right to raise their children against the best interests of the children and terminated the mother and father’s parental rights. The court concluded this was the least restrictive alternative available.

[¶28.] The parents, however, ask this Court to allow a guardianship as a least restrictive alternative. After presenting this same argument below, the circuit court acknowledged the children’s need for permanency. “[T]he well-being of the children overcomes the need to continue to offer services to parents that are unwilling to accept those services.” Essentially, the court declined guardianship in this case because it

would prolong the impermanent situation and have the children essentially hanging out there for a long period of time wondering if their parents are ever going to be able to have them back again. I am convinced beyond a reasonable doubt with all of my findings and all of my conclusions that were we to give this case another year or another two years or another three years, that we would be exactly where we are today, that these children would not have their parents, and that their parents would not be able to provide them the level of care necessary.

[¶ 29.] We conclude that the evidence clearly and convincingly supports the finding that termination of parental rights was the least restrictive alternative under SDCL 26-8A-26. Thus, the circuit court did not err when it found the conditions that existed at the time of removal still exist and that terminating the mother and father’s parental rights was the least restrictive alternative commensurate with the best interests of the children.

3. Requirements under ICWA

[¶ 30.] Under 25 U.S.C. § 1912(f), before parental rights can be terminated ICWA requires qualified expert testimony to support the court’s finding beyond a reasonable doubt that serious physical or emotional damage will likely result if continued custody remains with the parents. (Emphasis added). Ray Cournoyer was offered as the state’s sole ICWA expert. Defense counsel challenged him as an ICWA expert for SWST, but did not oppose his qualifications as an ICWA expert for YST. Therefore, the circuit court accepted Cournoyer as a qualified expert for YST’s customs and childrearing practices. After Cournoyer explained his qualifications, he testified that in his opinion the continued custody of these children with their parents would result in serious emotional damage. Based on this expert testimony and other facts presented throughout the termination hearing, the circuit court concluded beyond a reasonable doubt that the continued custody of the children with the parents would result in serious emotional damage to the children.

[¶ 31.] As a result, the parents claim, first, that the court erred because ICWA necessitates expert testimony on SWST’s customs and childrearing practices, and second, that serious emotional damage was not proved beyond a reasonable doubt. The parents claim that expert testimony is qualified if it specifically pertains to SWST’s childrearing practices and customs because SWST is Son 2’s alleged tribe and an expert on the YST practices is insufficient. See In the Interest of M.H., 2005 SD 4, ¶¶ 10-15, 691 N.W.2d 622, 625-27.

[¶ 32.] First, the trial court is always vested with the sound discretion to decide whether a witness meets the foundational reqmrements for testifying as an expert. This discretion will not be overturned unless we find an abuse of discretion. See id.; In the Interest of O.S., 2005 SD 86, ¶¶ 10-14, 701 N.W.2d 421, 425-26. Second, even if we accepted the parents’ claim, qualified expert testimony existed in this case because the children’s tribe is YST, not SWST, and the parents do not dispute that Cournoyer is a qualified expert on YST’s customs and childrearing practices. The parents are alone in their claim that SWST is Son 2’s tribe and the evidence in the record supports the court’s finding that YST is the children’s tribe. While the children may be eligible for enrollment in SWST, we have never required a court to consider expert testimony concerning each tribe the child is eligible for enrollment with. See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ D.4(b). The circuit court did not abuse its discretion when it qualified Cournoyer as an expert under 25 U.S.C. § 1912(f).

[¶ 33.] Because we find Cournoyer to be a qualified expert, we next consider the parents’ claim that the evidence did not support the court’s finding that “beyond a reasonable doubt, continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” See 25 U.S.C. § 1912(f). ICWA requires this threshold finding before parental rights can be terminated. See id.; In the Interest of D.G., 2004 SD 54, ¶ 18, 679 N.W.2d 497, 502. According to the parents, the evidence proved only a “ ‘possibility that there could be’ some emotional damage” and that is insufficient to sustain a finding beyond a reasonable doubt.

[¶ 34.] The circuit court considered the fact that the mother and father have “made no efforts to avail themselves of any substantial services throughout the entire process of this case [and][t]here has been no significant accomplishment towards any of the goals that have been set throughout the proceedings by Social Services or the Court.” Further, the court considered the testimony of the ICWA expert and others, and concluded that “there is little likelihood that any ... continued efforts are going to make any change with this family, and I also buttress that with my experience dealing with the family throughout the proceedings of this particular case.”

[¶ 35.] The evidence for this issue is closely tied with the evidence to support termination as the least restrictive alternative under SDCL 26-8A-26. Thus, we hold that the court’s findings support a conclusion beyond a reasonable doubt that continued custody of the children with the parents would likely result in serious emotional damage and termination was the least restrictive alternative commensurate with the children’s best interests.

4. No Absolute Right to Refuse to Testify in Dispositional Hearings

[¶ 36.] The children and the state challenge the circuit court’s decision that neither parent would be required to testify at the final dispositional hearing. After the children called the mother to testify, the court asked the mother’s attorney if he discussed with her, her “right not to testify” and the attorney answered in the affirmative. The children’s attorney argued that the parents do not have a right at a dispositional hearing not to testify, but the court disagreed and excused both parents from testifying. The state and the children objected, but the court did not identify a reason for allowing the parents this blanket right.

[¶ 37.] On appeal, the parents argue that they had the right to remain silent under the Fifth Amendment of the Federal Constitution and article VI, section 9 of the South Dakota Constitution. But the court denied any opportunity to inquire into areas that would be non-incriminating. While the issue is moot because we are affirming the circuit court’s decision to terminate parental rights, we nevertheless choose to address it for the benefit of the bench and bar.

[¶ 38.] An abuse and neglect proceeding is civil in nature, not criminal or quasi-criminal. See In re C.J.H., 371 N.W.2d 345, 349 (S.D.1985). Nevertheless, we recognize the privilege against self incrimination in civil proceedings. See State v. Sinnott, 72 S.D. 100, 105, 30 N.W.2d 455, 458 (1947) (article VI, section 9 of the South Dakota Constitution that grants the privilege against self incrimination, “is not confined to criminal actions, but extends to all manner of proceedings in which testimony is to be taken and protects both witnesses and parties”) (citing State v. Smith, 56 S.D. 238, 228 N.W. 240 (1929)). In addition, the children and the state have the right to call the parents as witnesses and interrogate them until the privilege is invoked. See id. (stating that it is the plaintiffs right to call the defendant as a witness in a civil proceeding) (citation omitted). Because the circuit court’s decision closed the door to information that may have been important in determining the final disposition of these children, we must consider whether a parent can flatly refuse to testify at a termination hearing, even concerning questions that are not incriminating.

[¶ 39.] We have not previously addressed this question; however, as the Eighth Circuit Court of Appeals explained, “[t]here is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings.” Capitol Products Corp. v. Hernon, 457 F.2d 541, 542 (8thCir.1972). Instead, a court should determine if the witness “is confronted by substantial and ‘real’, and not merely trifling or imaginary, hazards of incrimination.” Daly v. United States, 393 F.2d 873, 878 (8th Cir.1968) (quoting Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 706, 19 L.Ed.2d 889 (1968) (citing Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951); Brown v. Walker, 161 U.S. 591, 600, 16 S.Ct. 644, 648, 40 L.Ed. 819 (1896))).

[¶ 40.] The circuit court’s ruling giving the parents an absolute right against being examined' in court could have excluded information that was in the sole possession of the parents. While there was ample evidence in the record to support the court’s decision to terminate parental rights, the court should not have allowed the parents a blanket right not to testify. The children and the state have a valid interest in questioning the parents in order to inquire into matters that would not be incriminating and would not violate the parents’ privilege against self incrimination.

[¶ 41.] Affirmed.

[¶ 42.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.

      . The conditions were: (1) report to the Brown County Sheriff each day and submit to a PBT, (2) cooperate with Northern Alcohol & Drug Referral & Information Center (NA-DRIC) and Northeastern Mental Health Center (NEMHC) Homebased services and follow their recommendations, (3) remain in Brown County unless given permission to leave by DSS, and (4) work with DSS to develop a case service plan and accomplish these goals set forth in the case service plan.

      . The mother's boyfriend, A.S., informed law enforcement officers that "she had left him a note stating she was going to Sisseton to get Father....”

      . The mother's attorney wrote a list of nine items the parents agreed to in order for the father to return home. These items included: (1) Driver's License (Mother), (2) Insurance (Father), (3) Day Care Assistance (Mother, DSS caseworker), (4) Anger Management (Father, NEMHC, DSS caseworker, Bob Van Winkle), (5) Marriage Counseling, (6) Psychological — finish (Mother & Kent Miller), (7) Job (Mother), (8) AA (Mother, Father) signed cards, and (9) PBTs 2X daily (Father) IX daily (Mother).

      . “Mother did not obtain a driver's license. Father did not get insurance. Mother did not complete her psychological evaluation. Mother obtained employment, but only for a short time. Father did not complete anger management classes. Mother and Father went to counseling for a short period of time.”

      . There was some concern regarding the paternity of Son 2, but after the father was established as Son 2's biological father, SWST identified both children as eligible members of the tribe.

      . Pilcher, on behalf of the SWST, acknowledged that Son 1 was enrolled in YST and that SWST had no jurisdiction over Son 1.

      . The record reflects that both YST and SWST have an interest in these children, but “the fact that Congress, in the definition of 'Indian child’s tribe,’ provided criterion for determining which is the Indian child’s tribe, is a clear indication of legislative intent that there be only one such tribe for each child.’’ See Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ B.2 (Commentary).

      . "Good cause to the contrary” may occur in cases when:
      (1) the proceeding is at an advanced stage when the petition to transfer is received and the petition is not promptly filed after receipt of notice; (2) the Indian child is over the age of twelve and objects to the transfer; (3) evidence necessary to decide the case cannot be adequately presented to the tribal court without undue hardship to witnesses and parties; (4) the parents of an Indian child over the age of five are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.

        In re J.L., 2002 SD 144, ¶ 12, 654 N.W.2d at 790 (citing Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ C.3(b)).

      . The court also held that good cause existed to deny transfer because the proceedings were in an advanced stage, a factor recognized by the federal guidelines interpreting "good cause to the contrary." See In re J.L., 2002 SD 144, ¶ 12, 654 N.W.2d at 790 (citing Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67.586, ¶ C.3(b)). Under this rationale, the court noted that SWST was given notice of these proceedings, but waited until ten months after the abuse and neglect petition was filed to request a transfer. By this time both children were adjudicated abused and neglected and DSS had been involved extensively with the family working to provide services to the parents who continually failed to cooperate. Thus, the court concluded that “at this late stage in the proceedings — advanced stage in the proceedings, it would not be appropriate to transfer jurisdiction to the tribal courts.”

      . The court specifically stated that "it is not accurate to say that the only basis for removal from the home was domestic abuse. The [sjtate alleged a number of different things in their petition.”

      . The court addressed the desire to have the children placed with an Indian family, as ICWA requires, and specifically directed DSS to "pursue the options of placing these children with a family member.”

      . Section 1912(f) provides:
      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. (Emphasis added).

      .Ray Cournoyer has been a member of the YST since 1972 and has lived on the reservation for the last thirteen years. He has spent most of his life on the reservation, absent time in the military and while attending college, and is familiar with the custom and culture of the tribe. He is also aware of the services available through the YST regarding chil-drearing and parenting.

      . During cross examination, Cournoyer was asked about his knowledge of SWST's customs and childrearing practices. He responded:
      A: Well, I think that they're — they belong to the Great Sioux Nation, and I think we all speak different dialects, but we all — but their customs and practices are pretty much the same all the way through Sioux Country. I think that there is probably a variation, not very much, but I think throughout Sioux Country they are all — I mean whatever practices are on Yankton is pretty much what's up on Sisseton.
      Q: But you are not aware of, for example, what services may be available through the Sisseton-Wahpeton Tribe; is that correct?
      A: I talked with Evelyn [SWST, ICWA director], and I think all reservations have the . same services as the State.

      . Cournoyer testified that both children are members of YST. Also, a letter from the Chief Judge of SWST to the circuit court received one day before the final dispositional hearing states that "[i]n order for the children to be enrolled into our [Sisseton-Wahpeton Sioux] Tribe we must have confirmation of relinquishment from Yankton Sioux Tribe as you cannot be enrolled in two tribes simultaneously.” (Emphasis added). This letter was written as a last minute request for a continuance. The circuit court addressed this request at the termination hearing and the decision to deny a continuance was not appealed.

      .ICWA does not require testimony from an expert on each and every tribe the Indian child is eligible for enrollment in. Instead, the federal guidelines interpreting ICWA provide . a list of characteristics that "are most likely to meet the requirements for a qualified expert witness of purposes of Indian child custody proceedings: (i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices, (ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe, (iii) A professional person having substantial education and experience in the area of his or her specialty.”

        See Guidelines-for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg 67.586, ¶ D.4(b) (emphasis added).

      . Cournoyer, testifying as the ICWA expert, was asked:
      Q: This point as of today, if this judge were to say that [the children are going to go and live with their parents] as of today, do you believe that that would likely result in serious emotional or physical damage?
      A: I think it would because they haven't taken advantage of the services that were offered to them.

      Q: Okay. If the parents have domestic abuse issues, anger issues and then don't address those properly with treatment as recommended by the Tribe, that could result also in serious emotional injury to the children, correct?
      A: Yes. Because it shows up at school, and they have problems not only through school and other things, but it shows up throughout the community.
      Q: Okay. If the parents have unresolved alcohol issues, would that have a — a negative result on the children's emotional health?
      A: Yes. In my own personal experience of observing, I say yes.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. MEIERHENRY, Justice

license: Public Domain

text:
    2005 SD 124
    In the Interests of E.L. and R.L., Minor Children, and concerning A.L. and M.L., Respondents.
    No. 23574.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 7, 2005.
    Decided Dec. 21, 2005.

      Donna L. Bucher of Tinan, Smith & Bucher, Mitchell, for appellant Mother A.L.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Department of Social Services, Pierre, for appellee State.
   GILBERTSON, Chief Justice.

[¶ 1.] A.L. (Mother) appeals an order terminating her parental rights to her children. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Mother has two minor children, R.L. (Daughter) born on July 6, 1999 and E.L. (Son) born on June 8, 2003. On February 24, 2004, Mother took Daughter age 4 and Son age 8 months to their daycare provider around 6 a.m. Later on that morning, the daycare provider noticed that Son’s back was arched and his eyes were half closed. She felt this was “odd” and that “something seemed wrong.” Son was taken by ambulance to the Mitchell hospital and later airlifted to Avera McKennan Hospital’s pediatric intensive care unit in Sioux Falls.

[¶ 3.] After evaluation at both hospitals, it was determined that Son suffered major life threatening injuries including; four healing rib fractures, bilateral subdural hemorrhages, and bilateral retinal hemorrhages. The retinal hemorrhages were described by Dr. West as some of the “most significant ones I’ve ever seen, but I have seen several infants who’ve died who have had hemorrhages similar to that.” The attending neurosurgeon and radiology staff felt there were some older subdural hemorrhages as well as some new hemorrhages, which could indicate that Son had been injured on more than one occasion. These injuries led local officials to suspect that Son had been violently shaken and was the victim of child abuse. Both children were taken into protective custody by the Department of Social Services (DSS) on February 24, 2004.

[¶ 4.] Mother was interviewed on February 25, 2004, by Detective Don Everson of the Mitchell Police department and Detective Philip Toft (Toft) of the Minnehaha County Sheriff department regarding the injuries Son had sustained. During the interview, which was videotaped, Mother described a relatively stressful life to Toft. She had been in Mitchell on her own since July of 2003. Her husband, the father of these children, had only spent a couple of weeks in South Dakota, arriving only a few days before Son was injured. Mother explained that she was working 40-plus hours a week and was basically a single parent caring for two young children. She also told Toft that Daughter had been diagnosed with ADHD and that Son had been recently sick.

[¶ 5.] During the course of the interview Mother admitted to Toft that she had “accidentally” shaken Son due to her frustration over his fussiness. Mother described to Toft that Son had been crying and crying, that she had had little sleep and that Daughter was crying. She described how she had picked Son up by the chest and then “moved him back and forth” a couple of times saying something like “Stop crying! Stop it!” Mother also demonstrated to Toft how she handled Son by using her purse to show how she had picked him up and moved him to and from her body a couple of times. Throughout the course of this interview Mother never used the word “shook,” but instead described her actions as “rocked.” However, the movements described by Mother and observed on the videotape indicated that Mother shook Son. Mother also admitted that she had become frustrated with Son like this two or three times since January of 2004. Mother went on to say that she was “sorry she got frustrated,” that she “did not know” she had hurt her son, that she would “never hurt him,” and that she would “never do it again.” Son was discharged from the hospital on March 14, 2004, and placed in a foster care home in Sioux Falls in order to be close to his doctors.

[¶ 6.] Mother contacted DSS requesting information on what she needed to do in order to regain custody of her children. Mother signed a Family Service Agreement (FSA) with DSS and caseworker Heidi Geppert (Geppert) listing three objectives; parenting, anger management, and visitation. Geppert testified that Mother satisfactorily addressed all objectives. Specifically, Mother completed parenting classes twice, once on her own, and once with father and attended every visitation offered. Mother began counseling, had a psychological evaluation and did everything DSS asked of her. Additionally, Mother continually asked DSS if there was anything else she could or needed to do to get her children back. She was told DSS would get back to her if there was anything else.

[¶ 7.] Mother filed a motion for an independent expert on April 26, 2004, requesting that she be allowed to consult and use an expert throughout the proceedings. This motion was denied on May 6, 2004, after the trial court concluded that the request was not reasonable and the services were not necessary. An adjudicatory hearing was held on July 23, 2004. The trial court found that Son was shaken and squeezed while in his Mother’s care, that Mother admitted to shaking her son and that Father abandoned the children and Mother. The trial court found by clear and convincing evidence that Son and Daughter were abused and neglected within the meaning of SDCL 26-8A-2. An Order of Adjudication was entered on October 15, 2004.

[¶ 8.] A Dispositional Hearing was held on November 29, 2004. The State sought termination of parental rights as to both Mother and Father based on the adjudication and the finding that Son was the victim of significant injuries under SDCL 26-8A-26.1(2). A Dispositional Order terminating parental rights of both parents was entered on February 2, 2005. The trial court found that DSS did not make reasonable efforts to reunite Mother with her children, but found that reasonable efforts were not necessary under SDCL 26-8A-21.1 as Mother had committed acts which constituted aggravated assault pursuant to SDCL 22-18-1.1. The court further found that it was in the children’s best interests and the least restrictive alternative to terminate the parental rights of Mother and Father.

[¶ 9.] Mother appeals raising the following issues:

1. Whether the trial court erred in concluding that the least restrictive alternative in the best interests of the children was termination of Mother’s parental rights.
2. Whether the trial court abused its discretion by denying Mother’s motion for an independent expert.

STANDARD OF REVIEW

[¶ 10.] Parental rights may be terminated if it is in the best interests of the child and is also the least restrictive alternative available. SDCL 26-8A-26; Interest of A.S., 2000 SD 94, ¶ 19, 614 N.W.2d 383, 386. The “reasonable efforts” and “best interest of the child” and the “least restrictive alternative” balancing process are essentially issues of fact. In re K.C., 414 N.W.2d 616, 620 (S.D.1987). The trial court’s findings of fact will not be set aside unless they are clearly erroneous and due regard shall be given to the trial court’s opportunity to judge the credibility of witnesses. In the Interest of D.T., 2003 SD 88, ¶ 5, 667 N.W.2d 694, 697 (citing Matter of D.H., 354 N.W.2d 185, 188 (S.D.1984)). Moreover, this Court must review the best interests of the child from the child’s point of view, not the parents. A.S., 2000 SD 94, ¶ 19, 614 N.W.2d at 386.

ANALYSIS AND DECISION

[¶ 11.] 1. Whether the trial court erred in concluding that the least restrictive alternative in the best interests of the children was termination of Mother’s parental rights.

[¶ 12.] Under the Adoption and Safe Families Act, commonly referred to as “ASFA”,

a child protection system [is established] that subordinates parental rights to the paramount concern for the health and safety of the child when making a decision on whether it is in the child’s best interests to preserve the family unit. Under ASFA, the child protection system is not required to expend its limited resources attempting to reunify children with abusive parents if certain circumstances exist. Thus, the act allows states to move toward termination of parental rights more efficiently under certain circumstances.

People ex reí D.B., 2003 SD 113, ¶ 10, 670 N.W.2d 67, 70 (citations omitted).

[¶ 13.] In South Dakota, ASFA is primarily contained in SDCL 26-8A-21, 26-8A-21.1 and 26-8A-21.2. In the Matter of I.H., 2004 SD 7, ¶ 14, 674 N.W.2d 809, 812. SDCL 26-8A-21 requires reasonable efforts by DSS to reunite a child who has been removed from the home. Id. However, ASFA provides an exception to the reasonable efforts requirement when the court determines that a parent has subjected a child to “aggravated circumstances” as defined by state law. Id. South Dakota’s list of “aggravated circumstances” is contained in SDCL 26-8A-21.1, which provides in relevant part:

Nothing in § 26-8A-21 requires reunification of a child with a parent who:
(2) Committed a crime defined in § 22-18-1.1 against the child or another child of such parent, or committed conduct described by that section that violated the law or ordinance of another jurisdiction having elements similar to the offense described by that section[.]

[¶ 14.] “The reasonable efforts bypass provision found in 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. This Court has held that in order “[t]o bypass the requirement for reasonable efforts of reunification, ‘aggravating circumstances’ must be found.” Id. ¶ 13, 670 N.W.2d at 71. Here, the trial court determined that DSS did not make reasonable efforts to return the children to Mother, but that Mother committed acts of aggravated assault under SDCL 22-18-1.1. Therefore, the trial court found these acts constituted aggravating circumstances and determined reasonable efforts were not necessary under SDCL 26-8A-21.1.

[¶ 15.] The trial court’s findings are supported by the record. Son sustained four fractured ribs, bilateral subdural hemorrhage and bilateral retinal hemorrhages. These injuries were described as life threatening and required Son to remain in the hospital for several weeks. After being discharged from the hospital, Son has had numerous follow-up visits with various specialists. At the present time his long-term prognosis is in doubt; his injuries are healing, but he will need several years of follow-up visits.

[¶ 16.] Mother argues that the state’s reliance on the bypass provision is not supported by the facts. Mother argues that because she has not been convicted of aggravated assault under SDCL 22-18-1.1, but only criminally charged with it, DSS is still obligated to make reasonable efforts at reunification. However, Mother fails to recognize that the bypass provision supplied by SDCL 26-8A-21.1 provides “nothing requires reunification of a child with a parent who committed a crime.” (emphasis added). It does not say a parent who is convicted of a crime. Therefore, under the plain language of the statute, a conviction is not required in order to invoke the bypass provision. See In the Interest of Anthony V., 12 Neb.App. 567, 680 N.W.2d 221, 231 (2004) (stating “[t]here is no requirement that allegations against a parent which also could serve as the basis for criminal charges must be proven only with evidence of ‘a certified conviction.’ Rather, there must only be clear and convincing evidence that such conduct occurred.”) (citing In re Interest of Storee J., No. A-01-638, 2002 WL 975977 (Neb.App. May 14, 2002)).

[¶ 17.] Mother argues that the State did not show that she committed aggravated assault as defined by SDCL 22-18-1.1, as she did not intentionally injure Son. Mother claims that any injuries sustained by Son were accidental. SDCL 22-18-1.1 provides in relevant part:

any person who ... (7) intentionally or recklessly causes serious bodily injury to an infant, less than three years old, by causing any intracranial or intraocular bleeding, or swelling of or damage to the brain, whether caused by blows, shaking, or causing the infant’s head to impact with an object or surface; is guilty of aggravated assault.

While Mother may not have intended the injuries to Son, her actions were clearly reckless, resulting in serious injures and hospitalization. The trial court found:

[Son] had been subjected to significant trauma involving a serious threat to his very life. It clearly appeared that [Son] had been shaken badly and also squeezed while in the care of his mother. As revealed by the doctors who thereafter examined [Son], x-rays and CT scans revealed that [Son] had subdural hemorrhaging or hematomas in his head, that he had massive retinal hemorrhages in his eyes, and that he had four posterior rib fractures which were in the process of healing ... [m]edicial testimony indicated that [Son] was fortunate that he did not die from his condition and that it was one of the most severe situations of its type that had been observed by the treating physicians.

Clearly, Mother’s actions constitute aggravated assault under SDCL 22-18-1.1.

[¶ 18.] Lastly, in determining that termination of Mother’s parental rights was the least restrictive alternative in the children’s best interest the trial court applied SDCL 26-8A-26.1. SDCL 26-8A-26.1 provides in relevant part:

In addition to the provisions of § 26-8A-26, the court may find that good cause exists for termination of parental rights of a parent who:
(2) Committed a crime defined in § 22-18-1.1 against the child or another child of such parent[.]

As explained, the injuries sustained by Son were the direct result of Mother’s actions that constitute the crime of aggravated assault contained in SDCL 22-18-1.1(7). The trial court found that Mother “did in fact shake [Son] and, no doubt, also squeezed him in a much more severe manner than she was even aware of.” Thus, Mother’s actions meet the requirements of SDCL 26-8A-26.1.

[¶ 19.] This is a difficult case. Normally in termination cases we have parents who have failed to comply with their FSA and have other problems including alcohol and drug abuse. That is not the case here. Mother has completed all that was asked of her and sought out more in an attempt to regain custody of her children. Mother genuinely loves her children and claims she would do anything for them. However,

we must be mindful of the fact that the needs of the child must take priority over the wishes of the parent. To man-datorily impose a less restrictive alternative in each instance as a prerequisite .for termination would thwart this underlying principle in cases where immediate termination is the only viable means to insure that the best interest of the child is protected.

Matter of B.E., 287 N.W.2d 91, 95 (S.D.1979). We cannot overlook the fact that Mother seriously injured Son. Additionally, just because Mother completed the objectives of her FSA" does not establish that Mother would no longer be a risk to the safety of the children. Geppert testified that she believed the children would be at risk if they were returned to the custody of their Mother. She felt that “even though it was a split second poor decision that greatly impacted [Son’s] life, it would cause reason to believe it could possibly happen again.”

[¶ 20.] Although termination of Mother’s parental rights was not in her best interest, her rights must give way to accommodate the needs and best interests of her children. In re T.H., 396 N.W.2d 145, 151 (S.D.1986). Termination of Mother’s parental rights was the least restrictive alternative in the best interests of the children.

[¶ 21.] 2. Whether the trial court abused its discretion by denying Mother’s motion for an independent expert.

[¶ 22.] Mother asserts that the trial court abused its discretion by denying Mother’s motion for an independent expert to assist her in explaining and understanding the injuries sustained by Son. The appointment of an expert is in the discretion of the trial court. State v. Stuck, 434 N.W.2d 43, 50 (S.D.1988). The guidelines for determining when court-appointed experts are essential to an adequate defense are: 1) The request must be made in good faith; 2) the request must be reasonable in all respects; 3) the requests must be time-

ly and set forth reasons which seem to make such services needed or necessary to the defendant; and 4) the request must specify that the defendant is financially unable to obtain the required service himself and that such services would otherwise be justifiably obtained if the- defendant were financially able. State v. Jaques, 428 N.W.2d 260, 264 (S.D.1988) (citing State v. Sahlie, 90 S.D. 682, 245 N.W.2d 476, 480 (1976)). However, if the request is frivolous, unreasonable, unnecessary for an adequate defense, or without underlying factual support, the appointment need not be made.- Id. (citing State v. Hallman, 391 N.W.2d 191,194 (S.D.1986)).

[¶28.] Mother maintains that because the State relied heavily on medical expert testimony to explain the injuries sustained by Son, she needed an expert appointed to help her understand the testimony and possible causes of Son’s injuries. The trial court disagreed and found that Mother did not meet the requirements that the services were necessary and that the request was reasonable. The trial court is in the best position to judge the nature and necessity of the appointment of an expert. Hallman, 391 N.W.2d at 194. Under the facts, the trial court did not abuse its discretion in determining an expert was unnecessary and unreasonable.

[¶ 24.] The State’s reliance on the medical doctors did not come about because the State hired them as experts after the fact to testify at trial in the area of child abuse or neglect. Neither did the State hire them to interpret and testify as to the causes of the injuries suffered by Son contained in the medical records. These were the doctors who cared for Son after he arrived by air ambulance in Sioux Falls and during his stay in the hospital. Neither party was present when these doctors examined Son and observed the injuries he had sustained. The medical testimony presented and relied upon in this case included Son’s medical records and testimony taken during a joint deposition of Son’s treating medical doctors. There is no indication in the record that these doctors were any less available to Mother than to the State. In fact, Mother was present and participated in these depositions. Mother had the same opportunity as the State to question these doctors about the conditions and any alternative conclusions they could set forth to explain the injuries suffered by Son.

[¶ 25.] The state’s reliance on these treating physicians “is not sufficient to warrant the appointment of an expert for the defense. The defense must establish an articulable basis for believing that the state’s expert will present evidence which could reasonably be contradicted by other experts in the field.” Id. at 195.

[¶ 26.] Mother failed to articulate any reasonable facts which would support her request for a court-appointed expert. In Mother’s motion for an independent expert, dated April 22, 2004, her stated reasons for requesting an expert were “this alleged abuse is based on medical evidence; that there are copious records associated with the minor child’s medical condition, which need to be explained to counsel.... ” “Merely making a generalized request without a factual basis therefore is insufficient to establish the right of a defendant to a court-appointed expert.” Id. at 194. Additionally, Mother failed to provide an affidavit that alleged any underlying factual basis for such an appointment. It was only during the May 3, 2004, hearing on this motion that Mother, after apparently attempting to educate herself, explained how she had found a body of research that said there may be other causes, specifically, a reaction to childhood vaccinations, which would cause the same kind of symptoms suffered by Son. The depositions of the treating doctors were taken on July 2, 2004. Mother had the opportunity at that time and in fact did question one of the doctors on this body of research.

[¶ 27.] The trial court did not abuse its discretion in determining Mother had failed to show why an expert was necessary. Mother failed to articulate any reasonable foundation, both during the hearing and now on appeal to this Court, to explain how her expert could contradict the treating doctor’s testimony and her own testimony that she shook Son. A reaction to childhood vaccinations could not reasonably cause all the injuries suffered by Son, including the four healing rib fractures.

[¶28.] Additionally, the trial court was apparently troubled by the high cost of the expert Mother was requesting and found it unreasonable under the facts. It appears Mother’s only proposal for an expert would result in fees of $1500 to merely have the expert review the file, without examining the child. If the expert’s testimony was required, an additional fee of $4000 plus expenses would be required for one day of testimony. The trial court held that these fees did not “necessarily appear to be reasonable without the exploration of other expert possibilities.” Mother never provided other expert options.

[¶29.] It is important to note that the trial court, using the factors set forth in Jaques, 428 N.W.2d at 264, held that under the information provided by Mother she did not show how the appointment of an expert was necessary or reasonable. Even then, the trial court, in ruling on Mother’s motion for an expert and again at the Adjudicatory hearing, said that if Mother felt there was further justification for an expert she should renew her motion for the expert. The trial court informed Mother that if she could provide further information or facts supporting her motion the trial court would consider the information. Mother never provided additional facts or information. Instead, she just renewed her motion.

[¶ 30.] Under the specific facts of this case, there is no showing that the trial court abused its discretion in determining that the appointment of an expert was unnecessary and unreasonable.

[¶ 31.] Affirmed.

[¶ 32.] SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 33.] MEIERHENRY, Justice, dissents.

MEIERHENRY, Justice

(dissenting).

[¶ 34.] I respectfully dissent and would reverse for a new trial based upon issue two. I believe that the trial court abused its discretion by not granting Mother’s request for an expert. Although the majority says that Mother failed to provide an affidavit alleging “any underlying factual basis for such an appointment,” Mother did adequately support her request. The trial court pointed out in its memorandum decision that Mother’s attorney “had requested authority to hire an expert for the mother; a particular doctor whom she had located in Minnesota who she believed might provide testimony that there were other potential causes for the injuries which [Son] had sustained, apparently including reactions to shots.” The trial court also acknowledged that “[t]he fact testimony could be produced that there are other possible causes or explanations for some or all of [Son]’s severe medical condition on February 24, 2004.” Nevertheless, the trial court denied the request and found that Mother had not set forth reasons why expert services were “needed or necessary.” If the child’s injuries could be attributed to causes other than Mother’s shaking and proof of such could only come from an expert, then the expert’s services were “needed and necessary.” Cf Genie Lyons, Comment & Note, Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 Utah L.Rev. 1109 (arguing that scientific evidence commonly used to establish shaken baby syndrome may not indicate that a baby has been abused).

[¶ 35.] Mother’s opportunity to participate in depositions of the State’s experts and to cross examine them should not supplant her need for her own expert. Whether the State’s experts were treating physicians, as the majority points out, rather than hired experts also should not determine Mother’s need for her own expert. An expert was necessary to ensure Mother adequate cross examination of the state’s witnesses. Without her own expert, she was hindered in refuting their conclusions. The trial court denied Mother’s request partly because all of the medical records submitted by the State “uniformly concluded” the child’s severe brain injury preceded by rib injuries resulted from “one or more traumatic events.” Denying Mother’s request for an expert based upon the court’s predetermination as to the weight and credibility of the State’s witnesses goes against the court’s responsibility to ensure a fair trial. There should be some attempt to level the playing field and provide Mother with adequate resources to present her case. It appears here that the trial court concluded that the weight and credibility of the State’s expert was so overwhelming that testimony of “other possible causes or explanations ... could hardly change the court’s conclusions in this matter.” Therefore, the trial court found against the Mother, in part, because “[ajbsolutely no other possible explanation was submitted for the cause of these injuries.”

[¶36.] Other possible explanations for the injuries would have had to come from Mother’s expert. The court denied her the expert, however, and Mother could not afford to hire the expert on her own. Without the expert, she was unable to refute the opinions of the state’s witnesses or offer other possible explanations for the injuries. Thus, she was prejudiced in presenting her case. The trial court abused its discretion in denying her request for an expert. Therefore, I would reverse and remand for the trial court to allow Mother to hire an expert and have her case reheard.

      . A subdural hemorrhage means bleeding between the dura mater and arachnoid membranes which encase and protect the brain.

      . These were hemorrhages throughout the retina in both eyes, two real large central hemorrhages where the good vision center is and surrounding the optic nerve. The blood was blocking Son’s vision and the hemorrhages also extended all the way out to the edges.

      .Detective Toft became involved in this case after Mother agreed to take a polygraph examination that was to be administered by Toft. However, after Mother admitted to shaking her son, Toft determined that the exam would no longer provide any assistance to the investigation.

      . Father does not appeal this termination.


author: LAVORATO, Chief Justice.

text:
    Gail PEPPMEIER, Appellant, v. Bruce MURPHY, D.O., and Heartland Plastic and Reconstructive Surgery, P.C., Appellees.
    No. 04-0461.
    Supreme Court of Iowa.
    Dec. 30, 2005.

      Robert P. Montgomery and Brandon Brown, Des Moines, for appellant.
    Chester C. Woodburn, III, of Hansen, McClintock, & Riley, Des Moines, for ap-pellee Heartland Plastic and Reconstructive Surgery, P.C., and Connie Alt and Nancy J. Penner of Shuttleworth & Inger-soll, P.L.C., Cedar Rapids, for appellee Murphy.
   LAVORATO, Chief Justice.

In this medical malpractice case, the determinative issue is whether summary judgment in favor of an agent bars the plaintiffs claim against the principal when the claim is that the principal is liable for the agent’s actions on the basis of respon-deat superior. We hold that it does. In doing so, we affirm that part of the court of appeals decision that affirmed the district court’s grant of summary judgment in favor of the agent. We vacate that part of the court of appeals decision that reversed the district court’s grant of summary judgment in favor of the principal. We affirm the district court judgment.

I. Scope of Review.

We have recently summarized our review of a ruling on a motion for summary judgment as follows:

We review a ruling on a motion for summary judgment for errors at law. Summary judgment must be granted
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Summary judgment is appropriate if the only conflict concerns the legal consequences of undisputed facts.

Farmers Nat’l Bank of Winfield, v. Winfield Implement Co., 702 N.W.2d 465, 465-66 (Iowa 2005) (citations omitted). The questions then are whether there is a genuine issue of material fact and whether the district court correctly applied the law. Ratcliff v. Graether, 697 N.W.2d 119, 123 (Iowa 2005). “A factual issue is ‘material’ only if ‘the dispute is over facts that might affect the outcome of the suit.’ ” Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001) (citation omitted). The party moving for summary judgment has the burden to prove the facts are undisputed. Id.

II. Background Facts.

On June 3, 2002, Gail Peppmeier sued Dr. Bruce Murphy and Heartland Plastic and Reconstructive Surgery, P.C. (Heartland), alleging, among other things, that Murphy negligently performed breast surgery on her that required additional surgery which was also negligently performed. The claim against Heartland is based on its alleged vicarious liability resulting from the alleged negligent acts of its agent, Murphy.

The following facts have been gleaned from the pleadings, answers to interrogatories, and depositions in this action.

On May 18, 2000, Peppmeier saw Murphy regarding surgery to improve the appearance of her breasts and thighs. At the time, Murphy was with Heartland. Murphy’s medical notes of that visit state the following:

This is a 27 year-old white female, who comes to the office today requesting liposuction and in addition, would like to talk about her breasts. She is concerned about her flanks of her thighs.... With regards to her breasts, her primary concern is that she would like her nipples to be higher and not to be bottomed out. She feels she has significant breast tissue at this point, however, she wants the perky nipples she had previously.
... With regards to the breasts, she is not interested in being any larger, she would just like her nipples raised. I think a mastopexy [plastic surgery to elevate a sagging breast] [will] provide a lift, although not completely.

On June 2 Murphy performed two procedures on Peppmeier: bilateral accentric mastopexy and bilateral hip ultrasonic assisted lipoplasty. The hip procedure is not at issue as Peppmeier testified in her deposition on August 18, 2003 that she was pleased with the results from that procedure. Dr. Eugene Cherny, sole shareholder, president, and CEO of Heartland, was in the operating room, serving as a proctor for the equipment Murphy used on Peppmeier’s hips. Murphy’s operative report indicates that the breast surgery resulted in lifting Peppmeier’s breast three centimeters from its preoperative position and elevating the nipples and moving them superiorly to twenty-one centimeters.

According to Peppmeier’s deposition, she had a post-operative visit with Murphy on June 15 and told him she was not satisfied with the result of the breast surgery. She told him that (1) she was not satisfied with the lift of her breast and (2) her nipples were not where she felt they needed to be.

Peppmeier’s petition alleged that Murphy operated again on her on November 28. This time he performed a bilateral submuscular breast augmentation. Peppmeier testified in her deposition that she was still not satisfied with the results. Murphy used implants, which Peppmeier said Murphy told her would be unnecessary. After the implants, Peppmeier believed her breasts were still sagging and her nipples were still pointing down.

On July 3, 2001, Peppmeier saw Cherny at Heartland. By this time, Murphy had left Heartland. In her deposition, Peppmeier testified about that visit with Cherny:

I was extremely upset that day. I was crying. Because at this point I had wasted money as a single mom that necessarily wasn’t needed. And time on a second surgery that results were never what I expected nor was I told they would be. Dr. Cherny then immediately said, I agree, the surgery was done wrong. He should have seen that after the very first surgery, the mastopexy, that — or even before the — I correct myself, before the first surgery, Dr. Murphy should have been able to tell — and I’m not sure why he should have been able to tell, but that he should have been able to tell that the mastopexy would not take on my breasts.
He then agreed that the breast augmentation was done wrong ... as I’m crying, what am I going to do, he also told me that Dr. Murphy was no longer employed with Heartland ... and that he was ... illegally practicing in Des Moines.... [A]nd ... they’ve had several problems with Dr. Murphy’s work.

When asked if there was more, Peppmeier responded this way:

I recall, you know, once again being pressured into you should have a third surgery, this is what we need to do. Being upset, that I’d wasted time and money, of course I right then said, you know, who’s going to pay for this. And, you know, questioned him on their liability in the fact that they did employ Dr. Murphy and Dr. Cherny is the — I’m not sure if he’s considered the owner of Heartland Plastic Surgery. And he said we will work that out.

Peppmeier testified that at this point she was taken from the examination room to a conference room and met with Derrick Luttrell, then vice president of external affairs, and a women named Claire. Claire McGuire was the vice president of operations at the time. Peppmeier further testified that Luttrell and Claire told her that they would help her sue Dr. Murphy because the surgery was done incorrectly. According to Peppmeier, Luttrell and Claire gave her a phone number for an attorney. Luttrell testified in his deposition that he gave Peppmeier the names of several attorneys.

Some nine months before her deposition, Peppmeier gave the following answer to an interrogatory:

Defendant employed Dr. Murphy and Dr. Cherny was listed as the assisting physician. Defendant is responsible for the actions of Dr. Murphy in this case.
Dr. Cherny met with plaintiff and told her that Dr. Murphy had botched the surgery. He told plaintiff that Heartland would help her sue Dr. Murphy for the negligent operation. After the first surgery, plaintiffs nipples should have been lifted through the mastopexy procedure. Dr. Murphy assured plaintiff she could get the look she wanted without implants. However, plaintiff required implants after the first surgery.

Later, Peppmeier designated Cherny as an expert witness.

Cherny was deposed on October 24, 2003. His testimony can be summarized as follows. He had not been consulted by Peppmeier’s attorney before the attorney designated him as an expert on Peppmeier’s behalf. Cherny did not intend to express the opinion that Murphy breached the standard of care in this case, and he was not of the opinion that Murphy deviated from the accepted standards of care in treating Peppmeier. Cherny believed that many different methods could be used to achieve the same goal in plastic surgery, and that one doctor’s preference for a particular procedure does not mean that the standard of care has been breached.

Cherny stated (1) he did not recall making the statements Peppmeier attributed to him, (2) there was nothing in his medical records that indicated he said these things, (3) he really did not understand what the comments meant, (4) there was nothing in his medical notes that said there was medical malpractice or even anything that is “remotely like what Ms. Peppmeier states,” (5) nothing in his medical records stated that Murphy deviated from the standard of care for plastic and reconstructive surgery of the breast, (6) when he saw Peppmeier, Murphy was just separating or had separated from the practice, and (7) he was quite upset with Murphy and could have said things in the heat of the emotion.

III. Proceedings Following Discovery.

Following discovery, Murphy filed a motion for summary judgment. In the motion, he contended that the only expert Peppmeier designated did not have an opinion and would not testify at trial that Murphy breached the standard of care in performing the surgeries. Murphy further contended that the extrajudicial statements Peppmeier relied on were insufficient for the expert opinion necessary for a medical malpractice case. Murphy concluded that, because Peppmeier had no expert, she could not establish her medical malpractice action, and for that reason he was entitled to a judgment as a matter of law.

Heartland joined in Murphy’s motion for summary judgment, contending that because Murphy was entitled to summary judgment, Peppmeier’s action against it, which was based on respondeat superior, must likewise fail.

Following a hearing, the district court granted the defendants’ motion for summary judgment. The court concluded that Cherny’s July 3, 2001 statements did not, as a matter of law, establish negligence. The court reasoned that such extrajudicial statements were insufficient to substitute for expert testimony because they did not establish the applicable standard of care, a necessary and essential element of Peppmeier’s prima facie case required under Iowa law. The court further reasoned that because the extrajudicial statements were insufficient to substitute for expert testimony as a matter of law, Peppmeier’s claim against Heartland could not proceed.

Peppmeier appealed, and we transferred the case to the court of appeals. That court affirmed in part, reversed in part, and remanded for further proceedings.

The court of appeals held that Cherny’s July 3, 2001 statements were sufficient to allow a jury to infer that Murphy breached the standard of care. However, pursuant to Iowa Rule of Evidence 5.80K& )(2), the court concluded the statements were not admissible against Murphy.

As for Heartland, the court of appeals held Cherny’s statements were admissible against Heartland, which, the court stated, may be vicariously liable for Murphy’s actions. The court further held that as an agent of Heartland, Cherny’s statements were admissible against it under rule 5.801(d )(2)(D), and for that reason the district court erred in granting summary judgment in favor of Heartland.

Heartland filed an application for further review, which we granted.

IY. Issues.

On further review, Heartland contends the court of appeals erred in (1) concluding Cherny’s extrajudicial statements were a sufficient substitute for expert testimony and (2) remanding the case against the principal, Heartland, when the court of appeals found as a matter of law that there was insufficient evidence to establish a pri-ma facie case against the agent, Murphy. Because we agree with Heartland as to the second issue, we restrict our discussion to it.

V. Vicarious Liability and Res Judi-cata.

A. Applicable law. To establish a prima facie case of medical malpractice, the plaintiff must submit evidence that shows the applicable standard of care, the violation of the standard of care, and a causal relationship between the violation and the harm allegedly experienced by the plaintiff. Phillips, 625 N.W.2d at 718. Generally, expert testimony is required to establish specific negligence of a physician. Kennis v. Mercy Hosp. Med. Ctr., 491 N.W.2d 161, 165 (Iowa 1992). There are two recognized exceptions to the requirement of expert testimony, id., neither of which is at issue here.

In Wiles v. Myerly, this court held that admissions of a surgeon in notes found in hospital records fulfilled any need for expert testimony in a medical malpractice action to establish that a burn was inflicted. 210 N.W.2d 619, 622-23, 628 (Iowa 1973), see also Hill v. McCartney, 590 N.W.2d 52, 57 (Iowa Ct.App.1998) (holding that extrajudicial admissions can supply the necessary expert testimony in a malpractice case).

Here, Peppmeier intended to use statements Cherny allegedly made during the course of a medical appointment as evidence of malpractice by Murphy to establish not only Murphy’s negligence, but also that of Heartland on the theory of vicarious liability. The court of appeals concluded these statements were “sufficient to allow a jury to infer Murphy breached the standard of care.”

However, the court of appeals concluded the statements were not admissible against Murphy as admissions by a party opponent, and for that reason the district court properly granted summary judgment in favor of Murphy. Murphy raised this evidentiary issue on appeal as an alternative ground to support the district court’s grant of summary judgment in his favor. Murphy also raised this issue in the district court to support his motion for summary judgment. Although the district court did not base its decision on this ground, the court of appeals properly considered it. See DeVoss v. State, 648 N.W.2d 56, 61-62 (Iowa 2002).

Peppmeier did not file an application for further review to challenge the court of appeals holding that the district court properly granted summary judgment in favor of Murphy. Such failure means this holding by the court of appeals is a final adjudication that Murphy is not liable.

We are mindful of our rule that allows us to review any or all issues raised on appeal or to limit our review to just those issues brought to our attention by the application for further review. See Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). We see no problem applying the rule when we have only two parties, but here we have one plaintiff and two defendants, one of whom has been relieved of liability. Under these circumstances, we think Peppmeier should have filed an application for further review to preserve her issues as to Murphy. We consider her failure to do so a waiver. A contrary decision would amount to blindsiding Murphy, who took no further part in the appeal process after the court of appeals decision, believing, we are convinced, that Peppmeier had indeed waived any issues as to him.

The court of appeals further concluded that Cherny’s statements were admissible against Heartland, which the court found, may be vicariously liable for Murphy’s actions. The court held that “[a]s an agent of Heartland, Cherny’s statements are admissible against it under [Iowa Rule of Evidence] 5.801(d)(2)(D).” Rule 5.801(d)(2)(D) provides that an out of court statement is not hearsay if it is “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” Iowa R. Evid. 5.801(d )(2)(D). The court of appeals conclusion that Cherny’s statements were admissible against Heartland led that court to hold that the district court erred in granting summary judgment in favor of Heartland.

We assume without deciding that the court of appeals was correct in its conclusion that the challenged statements were sufficient to generate a fact question on whether Murphy breached the standard of care. We also assume without deciding that the court of appeals was correct in its conclusion that the challenged statements were admissible against Heartland, a party to this action, under rule 5.801(d)(2)(D).

The issue then becomes whether a principal (Heartland) may be held vicariously hable for an agent’s (Murphy) actions based on respondeat superior when there has been a final adjudication that the agent (Murphy) was not liable. Responde-at superior (from Latin, meaning “let the superior make answer”) is a doctrine holding that an employer or principal is liable “for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” Black’s Law Dictionary 1338 (8th ed.2004). This issue brings into focus the doctrine of res judica-ta, which provides that

“a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.”

Bennett v. MC # 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998) (citation omitted).

Res judicata has special applicability in suits against a principal or agent. In those circumstances, courts have recognized the rule

that a judgment in favor of either, in an action brought by a third party, rendered upon a ground equally applicable to both, should be accepted as conclusive against the plaintiffs right of action against the other, or as to any issues decided in the prior action. Thus, it has been held that where the liability of a principal is derivative [that is, the principal’s liability rests upon respondeat superior and not on the principal’s independent tort, for example, negligent supervision or training], a judgment on the merits in favor of the agent is res judicata in favor of the principal, although he was not a party to the earlier action. And where a judgment is in favor of the principal, the judgment is res judicata in an action against the agent, a derivative responsibility being present.

47 Am.Jur.2d Judgments § 687, at 145-46 (1995) (footnotes omitted); see also Biddle v. Sartori Mem’l Hosp., 518 N.W.2d 795, 799 (Iowa 1994) (holding that liability based on respondeat superior is derivative and that physician’s settlement of medical malpractice claim extinguished any further claim patient’s husband had against hospital on theory of vicarious liability; settlement wiped out any fault derived from physician’s conduct, separate and apart from hospital’s negligence, for which hospital remained accountable at trial); Restatement (Second) of Judgments § 51, at 47-48 (1982). This rule applies whether the actions are separate or the principal and agent are joined in the same action. Morehouse v. Wanzo, 266 Cal.App.2d 846, 72 Cal.Rptr. 607, 611 (1968); see also Wiedenfeld v. Chicago & Nw. Transp. Co., 252 N.W.2d 691, 695 (Iowa 1977) (recognizing that right of injured party to hold principal liable is a “direct or primary right” and that the agent is not a necessary party to an action against the principal).

One court has explained the rationale underlying the rule this way:

When an action is brought against a [principal] based on the alleged negligent acts of his [agent], and no independent wrong is charged on behalf of the [principal], [the principal’s] liability is entirely derivative, being founded upon the doctrine of Respondeat superior. In this regard, it has been said that the liability of the [principal] and [agent] for the acts of the [agent] is deemed that of one tortfeasor and is a consolidated or unified one. As such, any legal claim against the [principal] must be said to be identical to that which the plaintiff may have asserted against the [agent]. The operative facts which comprise the alleged bases for liability of the [principal] are identical to those which would prove the [agent] liable. Indeed, if the agency relationship is not in dispute, any act of the [agent] which renders the [principal] liable also renders the [agent] liable. A judgment, therefore, adjudicating the [principal] not liable, where a judgment to the contrary could have only resulted from a finding that the [agent] committed an actionable wrong against the plaintiff, is a judgment in legal effect that the [agent] is not liable.... [T]o hold otherwise would allow the plaintiff to have two trials for the same cause of action.

Towns v. Yellow Cab Co., 73 Ill.2d 113, 22 Ill.Dec. 519, 382 N.E.2d 1217, 1221-22 (1978) (citations omitted) (trial court’s dismissal of passenger’s allegations against cab company for failure to answer interrogatories in violation of court order held to have barred passenger’s action against driver); see also Restatement (Second) of Judgments § 51 cmt. b, at 50-51 (1982).

B. Analysis. Here, as mentioned, the court of appeals has determined that Peppmeier has no claim against Murphy because Cherny’s statements about Murphy’s alleged malpractice were not admissible against Murphy. This determination led the court of appeals to conclude the district court properly granted summary judgment in favor of Murphy. That decision became final when Peppmeier did not seek further review on this issue. The one remaining question therefore is whether the court of appeals’ conclusion that the district court properly granted summary judgment in favor of Murphy bars Peppmeier’s claim against Heartland under principles of res judicata.

Iowa Rule of Civil Procedure 1.951 provides that “[e]very final adjudication of any of the rights of the parties in an action is a judgment.” And a judgment is a “final judgment” if it “ ‘finally adjudicates the rights of the parties.’ ” Nuzum v. State, 300 N.W.2d 131, 133 (Iowa 1981) (citation omitted). A “final judgment” has also been defined as “[a] court’s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs ... and enforcement of the judgment.” Black’s Law Dictionary 859 (8th ed.2004). A grant of summary judgment means there is no genuine issue as to any material fact. Iowa R. Civ. P. 1.981(3). And a fact is material only if it is outcome determinative. Phillips, 625 N.W.2d at 717.

Admittedly, the res judicata rule speaks in terms of requiring “a final judgment on the merits.” See Black’s Law Dictionary 860 (8th ed.2004) (defining judgment on the merits as “[a] judgment based on the evidence rather than on technical or procedural grounds”). A final judgment on the merits suggests a trial of contested facts in contrast to a summary judgment, which is entered without a trial and without specific factual findings. One legal source has explained the use of the language “judgment on the merits”:

It is commonly said that preclusion can rest on a judgment that is valid, final, and on the merits. The phrase “on the merits” has been used for a long time, and is continued today ... in judicial usage.... It is an unfortunate phrase, which could easily distract attention from the fundamental characteristics that entitle a judgment to greater or lesser preclusive effects. The characteristics that determine the extent of preclusion may have little to do with actual resolution of the merits, although the paradigm will always be a judgment entered after full trial of all disputed matters. Thus it is clear that an entire claim may be precluded by a judgment that does not rest on any examination whatever of the substantive rights asserted. On the other hand, further litigation of particular issues may be precluded by judgments that do not bar further litigation on the underlying claim. [For example, dismissal of an action for lack of subject-matter jurisdiction does not preclude a second action on the same claim in a court that does have subject-matter jurisdiction, but does preclude relitigation of the question whether the first court had subject matter jurisdiction]. The only virtue that redeems the “on-the-merits” phrase from oblivion is its service as a shorthand reminder that the extent of preclusion is measured by factors beyond validity and finality.

18A Charles Alan Wright, Arthur R. Miller 6 Edward H. Cooper, Federal Practice and Procedure § 4435, at 132-35 & 134 n. 7 (2d ed.2002) [hereinafter Wright] (footnotes omitted); see also Restatement (Second) of Judgments § 19 cmt. a, at 161 (1982) (eliminating reference to judgments on the merits “because of [the] possibly misleading connotations”).

As for the preclusive effect resulting from summary judgments, the same legal source states:

Both claim preclusion and issue preclusion result from summary judgments that rest on the lack of any genuine issue of material fact going to the merits of claim or defense. To be sure, it might be possible to advance the sophistic argument that preclusion is inappropriate since there has been no resolution of questions of fact, only a determination that there are no questions of fact.... Preclusion is appropriate even if the summary-judgment motion went unopposed; the court still must decide that the moving party has carried the summary-judgment burden, and a party should not be able to salvage a losing position for another day by simply walking away from the summary-judgment proceeding.
Only two possible qualifications need be noted.

18A Wright, Federal Practice and Procedure § 4444, at 294-96 (footnotes omitted). Neither one of the qualifications applies to this case. See id. § 4444, at 296-99.

As one court noted,

We reject out of hand the beguiling but superficial contention ... that neither Suit No. 1 nor No. 2 can have any collateral estoppel effect because no summary judgment can have such effect. This is based on an overemphasis of two assertions: (1) a collateral estoppel results only from an actual decision of an issue and (2) a summary judgment results from a finding that there is no genuine issue as to any material fact.
It would be strange indeed if a summary judgment could not have collateral estoppel effect. This would reduce the utility of this modern device to zero.... Indeed, a more positive adjudication is hard to imagine.

Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 421 F.2d 1313, 1319 (5th Cir.1970). A number of other courts have similarly held that a summary judgment constitutes a final judgment on the merits. See, e.g., Griego v. Padilla, 64 F.3d 580, 584-85 (10th Cir.1995); King v. Hoover Group, Inc., 958 F.2d 219, 222 (8th Cir.1992); Dowd v. Soc’y of St. Columbans, 861 F.2d 761, 764 (1st Cir.1988); Spiegel v. Cont’l Ill. Nat’l Bank, 790 F.2d 638, 645 (7th Cir.1986); Adkins v. Allstate Ins. Co., 729 F.2d 974, 976 n. 3 (4th Cir.1984); Jackson v. Hayakawa, 605 F.2d 1121, 1125 & n. 3 (9th Cir.1979); Hubicki v. ACF Indus., Inc., 484 F.2d 519, 524 (3d Cir.1973); DePratt v. West Bend Mut. Ins. Co., 113 Wis.2d 306, 334 N.W.2d 883, 885 (1983).

We agree with these authorities that, except in limited situations not relevant here, a summary judgment constitutes a final judgment on the merits. The summary judgment in favor of Murphy rests on the lack of any genuine issue of material fact going to the merits of Peppmeier’s claim against Murphy and was a final judgment on the merits that Peppmeier had no claim against Murphy. The summary judgment disposed of all issues and controversies between Peppmeier and Murphy. Because Peppmeier’s claim against Heartland was based on the same facts that comprised her claim against Murphy, her claim against Heartland is necessarily barred. Stated another way, because Peppmeier’s claim against Heartland was that of vicarious liability based on respondeat superior regarding Murphy’s actions rather than on Heartland’s independent tort, the summary judgment in favor of Murphy is res judicata in favor of Heartland.

VI. Disposition.

As mentioned, Peppmeier did not seek further review concerning the court of appeals decision affirming the district court’s grant of summary judgment in favor of Murphy. We therefore affirm that part of the court of appeals decision and affirm the district court’s grant of summary judgment in favor of Murphy. Because we conclude Peppmeier’s claim against Heartland is barred, we must vacate the court of appeals decision that concluded the district court erred in granting summary judgment in favor of Heartland. In doing so, we must also affirm the district court’s grant of summary judgment in favor of Heartland.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except CARTER, J., who takes no part.