This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In the Matter of the Welfare of:

S.A.J. and E.G.J.


Filed December 17, 2002


Mulally, Judge



Ramsey County District Court

File No. J801554753



Raymond M. Lazar, Laurie J. Miller, Judy S. Engel, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for appellant Rick Lee Johnsen)


Robin Dietz-Mayfield, Attorney at Law, Baker Court, Suite 305, 821 Raymond Avenue, St. Paul, MN  55114 (for respondent Louisa Johnsen)


Susan Gaertner, Ramsey County Attorney, Gwen A. Werner, Assistant County Attorney, Heather E. McCleery, 560 RCGC-West, 50 West Kellogg Boulevard, St. Paul, MN  55102-1556 (for respondent Child Protection)


Paul W. Bergstrom, Ramsey County Guardian Ad Litem Juvenile and Family Justice Center, 25 West Seventh Street, St. Paul, MN 55102 (for respondent Guardian ad Litem)


            Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Mulally, Judge.*


U N P U B L I S H E D   O P I N I O N




            R.J. appeals from an order denying his motion to dismiss a Child in Need of Protection or Services (CHIPS) proceeding.  He argues that (1) the CHIPS proceeding should have been dismissed on the grounds of collateral estoppel; (2) the district court improperly dismissed the CHIPS proceeding for lack of jurisdiction; and (3) the district court’s decision to suspend his parenting time on a temporary basis violated Minn. Stat. § 518.175, subd. 5 (2000) because there was no finding that he endangered his children.  We affirm.



            L.J. filed a petition for dissolution of marriage from R.J. in 1998.  L.J. and R.J. agreed to have joint legal custody of their two children, S.A.J. and E.G.J., and that L.J. would have sole physical custody of the children.  In 2000, L.J. filed for an Order for Protection (OFP) against R.J.  The district court granted L.J. an ex parte temporary OFP against R.J.  After the OFP was issued, the children reported that R.J. sexually abused them.  The district court modified the temporary OFP to require that a nanny be present during R.J.’s visitation with the children and L.J. moved for a custody modification on the grounds of child endangerment.  After an in-depth ten-month investigation, the district court concluded that L.J. failed to prove her allegations of abuse and the OFP and custody modification were denied. 

            In August 2001, the Ramsey County Community Human Services Department (RCCHSD) brought a Child in Need of Protection or Services (CHIPS) petition on behalf of S.A.J. and E.G.J.  The CHIPS petition was based in part on similar allegations offered in support of L.J.’s OFP petition.  Child protection took emergency custody of the children, and they were placed with L.J.  R.J. brought a motion to dismiss the CHIPS proceeding on the grounds of collateral estoppel, which the district court denied. 

In November 2001, R.J. and L.J. signed a settlement agreement in which they admitted to the CHIPS petition and agreed to stay adjudication of the CHIPS proceeding for 90 days.  The parties also agreed that a second 90-day stay of adjudication could be granted if the court determined it necessary.  At the end of the first stay, the CHIPS petition adjudication was stayed for another 90 days so the parties could continue therapy and make additional efforts to reunite S.A.J. and E.G.J. with R.J. Shortly before the end of the second stay, L.J. filed a motion for temporary and permanent sole legal custody of the children and to deny R.J parenting time until further order of the court.  In May 2002, the second stay expired and the district court held a hearing to review the CHIPS petition and L.J.’s motion.  At the hearing, RCCHSD asked the court to dismiss the CHIPS petition because both parties had complied with the settlement agreement.  The district court dismissed the CHIPS proceeding, finding that the matter had been settled and concluding that it lacked jurisdiction to continue the matter.  The court awarded L.J. temporary legal custody of the children and conditionally suspended R.J.’s visitation rights until the final resolution of their marital dissolution action, stating that R.J. could visit his children before a final custody determination only at the discretion of the children’s therapists.  This appeal followed.





      The doctrine of collateral estoppel is employed to prevent parties to an action from relitigating issues that were determined in prior actions.  In re Special Assessment for Water Main Extension, 255 N.W.2d 226, 228 (Minn. 1977).  Collateral estoppel applies when (1) the issue to be litigated is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the previously-adjudicated issue.  Willems v. Comm’rof Pub. Safety, 333 N.W.2d 619, 621 (Minn. 1983).  Courts do not apply collateral estoppel rigidly and focus instead on whether an injustice would be worked upon the party upon whom the estoppel is urged.  Johnson v. Consol. Freightways, Inc., 420 N.W.2d 608, 613-14 (Minn. 1988).  The determination of whether collateral estoppel is available presents a mixed question of law and fact that we review de novo.  See Falgren v. State Bd. of Teaching, 545 N.W.2d 901, 905 (Minn. 1996).

            R.J. argues that the district court erred in denying his motion to dismiss the CHIPS proceeding under the doctrine of collateral estoppel because the CHIPS petition was based on the same issues that were considered and decided under the prior OFP petition.  The parties do not dispute that L.J. had a full and fair opportunity to be heard during the OFP proceeding or that there was a final judgment on the merits in that proceeding.  But the parties disagree on whether the issues in the OFP and CHIPS proceedings are identical and whether L.J. and RCCHSD were in privity during the OFP proceeding. 

We fist consider whether the OFP and the CHIPS proceeding contained identical issues.  The CHIPS proceeding addressed whether the history of domestic abuse and marital discord between the parents and the turmoil surrounding the alleged sexual abuse created an injurious or dangerous environment for S.A.J. and E.G.J., considering their severe developmental disabilities.  RCCHSD sought emergency protective custody of the children and to provide appropriate services to help the family meet the needs of the children.  In the CHIPS proceeding, the district court considered factors such as the relationship between the parents, the impact of the parents’ relationship on the children, allegations of abuse occurring both before and after the OFP petition was filed, and the needs of the children in light of their developmental disabilities.  See Minn. Stat. § 260C.001 (2000) (defining child in need of protection or services).  In contrast, the OFP proceeding addressed the specific issues of whether R.J. physically and sexually abused S.A.J. and E.G.J., and whether he physically harmed and verbally threatened L.J.  See Minn. Stat. § 518B.01, subd. 4 (2000) (defining order for protection).   L.J. sought to restrain R.J. from having contact with her, to have sole custody of the children, and for the court to order supervised visitations between R.J. and the children.  The district court analyzed specific alleged instances of abuse in the family, looking only at whether L.J. proved that R.J. physically harmed her and the children, had criminal sexual contact with them, and made terroristic threats against her.  Because the issues in the two proceedings are legally distinct, we do not consider them identical for purposes of applying the doctrine of collateral estoppel.

We next consider whether RCCHSD was in privity with L.J. during the OFP proceeding.  Although the concept of “privity” has not been strictly defined, it expresses the idea that certain non-parties may be so connected with the litigation of certain proceedings that the judgment in those proceedings should also determine the interests of the non-parties.  Brunsoman v. Seltz, 414 N.W.2d 547, 550 (Minn. App. 1988) (citation omitted), review denied (Minn. Jan. 15, 1988).   Privity exists where the record demonstrates controlling participation and active self-interest in the litigation.  Id.  The basic requirement for the availability of collateral estoppel is that the estopped party’s interests have been sufficiently represented in the first action so that the application of collateral estoppel is not inequitable.  Id.  Although RCCHSD was not a party to the OFP proceeding, R.J argues that RCCHSD was in privity with L.J. because a RCCHSD child protection employee submitted a statement regarding her ongoing investigation of the family to the court, and testified under subpoena at the OFP hearing.  But mere participation in a case does not make one privy to the judgment.  Hentschel v. Smith, 278 Minn. 86, 95, 153 N.W.2d 199, 206 (1967).  There is nothing in the record that indicates RCCHSD had an active self-interest in the litigation or control of the litigation.  Therefore, RCCHSD was not in privity with L.J. during the OFP proceeding, and we conclude that the doctrine of collateral estoppel does not apply.



If it is in the best interests of the child to do so and if the allegations contained in the CHIPS petition have been admitted, the court may continue the case for a period not to exceed 90 days on any one order.  Minn. Stat. § 260C.201, subd. 12 (2000).  Following the 90-day continuance, if both the parent and child have complied with the terms of the continuance, the case must be dismissed without an adjudication that the child is in need of protection or services.  Id. at subd. 12(1).  If either the parent or child has not complied with the terms of the continuance, however, the court shall adjudicate the child in need of protection or services.  Id. at subd. 12(2).  Jurisdiction is a question of law that we review de novo.  See Frost-Benco Elec. Ass’n v. Minn. Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1986).

R.J. argues that the district court erred in refusing to continue the CHIPS case for a third 90-day stay or to set the matter for trial.  As part of their settlement agreement, R.J. and L.J. agreed to allow two 90-day stays of adjudication.  This time period is longer than that authorized by Minn. Stat. § 260C.201, subd. 12.  The district court concluded that it lacked jurisdiction to continue or adjudicate the CHIPS petition after the second stay because the relevant statute only allows one 90-day stay of adjudication and because both parties had complied with the terms of the settlement agreement.  We agree.  The parties’ private agreement to allow a second stay of adjudication did not confer jurisdiction on the district court to continue the proceedings for a third time or to adjudicate the CHIPS petition after the second stay.  See Herubin v. Finn, 603 N.W.2d 133, 137 (Minn. App. 1999) (stating that “[s]ubject matter jurisdiction cannot be conferred upon the court by consent of the parties”) (citation omitted).

R.J. also argues that L.J. breached the settlement agreement because she failed to make legitimate reunification efforts as required under its terms.  He contends that L.J.’s motion to suspend R.J.’s visitation and award her sole legal custody of the children which was filed before the end of the second 90-day stay shows that she did not want him reunited with the children.  But the rules of general practice require that motions be filed prior to the relevant hearing date.  See Minn. R. Gen. Pract. 303.03(a) (stating motions must be filed at least fourteen days prior to the hearing).  The timing of L.J.’s motion does not show that she breached the settlement agreement.  Further, R.J. never filed a motion pursuant to the settlement agreement alleging that L.J. was not complying with the reunification terms of the agreement. 

R.J. additionally argues that the district court failed to ensure that all parties complied with the settlement agreement by making legitimate reunification efforts.  Once a child alleged to be in need of protection or services falls under the court’s jurisdiction, the court shall ensure that reasonable efforts are made to reunite the child with the child’s family.  Minn. Stat. § 260.012(a) (2000).  “Reasonable efforts” means the exercise of due diligence by the responsible social services agency to use appropriate and available services to eliminate the need for removal and reunite the family.  Id. at 260.012(b). 

The record in this case shows that the court found that both L.J. and R.J. had complied with the terms of the settlement agreement during the first 90-day stay.  The court also heard arguments regarding whether L.J. made a good faith effort to reunite the children with R.J. during the second 90-day continuance.  The court never found that L.J. failed to comply with the terms of the settlement agreement.  The record thus supports the conclusion that the district court ensured that legitimate reunification efforts were made between the parties.


In this case, L.J. moved in both juvenile and family court for temporary and permanent sole legal custody of the children, and also requested that R.J. be denied parenting time until further order of the court.  The motion, made in anticipation of the CHIPS proceeding being dismissed, was heard during the review hearing for the second 90-day stay in the CHIPS proceeding.  In the same order, the district court dismissed the CHIPS proceeding, awarded temporary sole legal custody of the children to L.J., and temporarily suspended R.J.’s parenting time, stating that his visitation with S.A.J. and E.G.J. was left to the sole discretion of the children’s therapists pending the outcome of the dissolution action. 

R.J. argues that the district court did not have jurisdiction to make a temporary custody or parenting time decision after it dismissed the CHIPS proceeding.  We disagree.  R.J. and L.J. had a marital dissolution action pending at the same time as the CHIPS proceeding.  Although L.J.’s motion was considered during the juvenile court CHIPS proceeding, the district court had the authority to hear the motion under either the juvenile court CHIPS proceeding or the family court marital dissolution action.  See Minn. Stat. § 260C.101, subd. 1 (2000) (stating the juvenile court has original and exclusive jurisdiction in proceedings concerning any child alleged to be in need of protection or services); see also Minn. Stat. § 518.131, subd. 1(a) (2000) (stating that in a dissolution proceeding a party may move for temporary custody and parenting time and the court may grant a temporary order pending the final disposition of the proceeding).  In addition, the same judge was presiding over both proceedings.  See 2000 Minn. Law. Ch. 452 § 1 (outlining pilot project implemented by the second judicial district, in which related family, probate and juvenile court matters are to be assigned to the same judge).  Thus, the district court still had jurisdiction to rule on L.J.’s temporary custody and parenting time motion under the pending family court action despite having dismissed the CHIPS proceeding. 

While it may be atypical for the district court to include a family court issue in a juvenile court order, the district court would presumably issue the same temporary custody and visitation decision through the family court if the issue were remanded for that reason.  In the interest of judicial economy, we decline to remand where, as in the present case, the result upon remand would unlikely change.  See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (affirming the district court’s decision despite lack of specific findings since remand would unlikely result in a different outcome).

R.J. argues that even if the district court had jurisdiction to rule on L.J.’s motion, it erred in temporarily terminating his parenting time without a hearing.  He also contends that once the district court dismissed the CHIPS petition it had no authority to make a temporary parenting time decision without making a finding to support a suspension of his parenting time, as required by Minn. Stat. § 518.175, subd. 5 (2000).  Under this statute, the court shall modify an order granting or denying parenting time whenever modification would serve the best interests of the child, but the court shall not restrict parenting time unless it finds that the parenting time is likely to endanger the child’s physical or emotional health or impair the child’s emotional development.  Minn. Stat. § 518.175, subd. 5(1). 

But the district court has broad discretion in determining the best interests of a child in terms of parenting time.  Braith v. Fisher, 632 N.W.2d 716, 721 (Minn. App. 2001), review denied (Minn. Oct. 24, 2001).  The record in this case shows that the district court heard L.J.’s motion at the CHIPS petition review hearing and that R.J. had an opportunity to respond to the motion.  In addition, the district court judge found that it was in the children’s best interests to temporarily suspend R.J.’s parenting time.  Specifically, the judge found that R.J. and L.J. were “engaged in a highly contentious, protracted dissolution proceeding which has been and continues to be extremely hard on the children.”  The judge stated that L.J. was awarded temporary sole legal custody of the children due to the “lack of cooperation and communication” between R.J. and L.J.  The judge concluded “[t]hat it is in the children’s best interests that any visitation between [R.J.] and the children pending final resolution of the dissolution matter be temporarily suspended and visitation only occur if the children’s respective therapists believe that it would benefit the children.”  We conclude that the district court made appropriate findings to support a temporary suspension of R.J.’s parenting time and did not abuse its discretion in doing so. 


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.