This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In the Matter of the
Welfare of the Children of:
R.E.R., Parent.


Filed December 24, 2007


Hudson, Judge


Clay County District Court

File No. 14-J5-07-050109, 14-J1-07-050110, 14-J2-06-050333


Melinda Weerts, Melinda Weerts Law, LLC, One N. 2nd Street, Ste. 120, PO Box 2310, Fargo, ND  58103 (for appellant R.E.R.).

Brian J. Melton, Clay County Attorney, Cheryl Duysen, Assistant Clay County Attorney, Clay County Courthouse, 807 North 11th Street, PO Box 280, Moorhead, MN  56561 (for respondent Clay County Social Services).


            Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this termination-of-parental-rights appeal, mother argues that the district court violated the doctrines of collateral estoppel and res judicata by focusing on evidence involved in a prior, failed attempt to terminate her parental rights; improperly used mother’s relationship with a third party as a basis for termination when the third party has not harmed the children and offered to undergo any treatment the county deems necessary; and made findings of fact that are unsupported by the record.  We affirm.


            In December 2005, the county removed mother’s children from her care and petitioned to terminate her parental rights.  The district court dismissed the petition; the county appealed, but in the interim, returned mother’s children.  Mother later became involved with David Lovejoy, who lived in Arizona and who had been convicted of, among other things, sexual abuse.  Mother invited Lovejoy to Minnesota to live with her, her children, and her former boyfriend.  In January 2007, the county again removed the children from mother’s care; Lovejoy was charged with, and incarcerated for, not registering his residence with the authorities, and the county again petitioned to terminate mother’s parental rights.  The district court ruled that Lovejoy to did not have to register his Minnesota residence and dismissed the charges against him.  Eleven days after he was released from custody, and four days before trial on the second termination petition, mother married Lovejoy.  Shortly after the second termination trial, this court affirmed the dismissal of the first termination petition.  In re Welfare of Children of R.E.R., No. A06-2015 (Minn. App. May 8, 2007).  On May 23, 2007, the same district-court judge who dismissed the first termination petition granted the second petition.  Mother appeals.



            Each statutory basis invoked to terminate mother’s parental rights in the current proceeding was alleged in the prior proceeding.  Noting that much of the evidence involved in this proceeding was or could have been involved in the first proceeding, mother argues that this termination of her parental rights violated the doctrines of collateral estoppel and res judicata.  We reject this argument.

            Even if the prerequisites for applying collateral estoppel or res judicata are present, neither doctrine must be applied if doing so would contravene public policy.  AFSCME Council 96 v. Arrowhead Reg’l Corr. Bd., 356 N.W.2d 295, 299 (Minn. 1984); see In re Welfare of D.M.D., 438 N.W.2d 713, 715–16 (Minn. App. 1989) (noting, in a termination proceeding, that there is flexibility in deciding whether to apply collateral estoppel).  When deciding whether to terminate parental rights, a district court largely relies on “the projected permanency of the parent’s inability to care for his or her child.”  In re Welfare of A.D., 535 N.W.2d 643, 649 (Minn. 1995); see In re Welfare of S.Z., 547 N.W.2d 886, 893 (Minn. 1996) (reciting same idea).  And the projected permanency of a parent’s inability to care for a child can involve consideration of the history of the parent’s conduct and condition.  See S.Z., 547 N.W.2d at 893–94 (reviewing parent’s mental-health and chemical-abuse history).  Here, regarding mother’s expected future success in therapy, her former psychologist testified that “the best predictor of [a patient’s] future behavior is going to be their past behavior.”  Thus, to rule that res judicata or collateral estoppel precluded the district court, when evaluating mother’s expected future ability to care for her children, from considering aspects of her past because those aspects were or could have been involved in the prior termination proceeding would run contrary to the policy of making fully-informed termination decisions.

            That the district court is not automatically precluded from considering aspects of a termination case involved in a prior termination proceeding is consistent with the limited applicability of res judicata and collateral estoppel in family matters.  Maschoff v. Leiding, 696 N.W.2d 834, 838 (Minn. App. 2005); see Loo v. Loo, 520 N.W.2d 740, 743–44 & n.1 (Minn. 1994) (discussing res judicata and collateral estoppel).  The limited applicability of these doctrines in family matters arises from the changing circumstances inherent in such matters and the corresponding changes that are required in the relevant court rulings.  See Loo, 520 N.W.2d at 743 (noting case law and statutes recognize that changed circumstances can justify altering family rulings).  A basic purpose of the juvenile-protection system is to change the circumstances of parents and children so that families can remain united or, if separated, be reunited.  See Minn. Stat. § 260.012(a) (2006) (requiring county to make reasonable efforts to eliminate the need for out-of-home placement of children and to reunite the family).  Therefore, to require application of collateral estoppel or res judicata to the subset of family matters that are juvenile-protection matters would be contrary to both caselaw addressing family matters generally and to the purpose of juvenile-protection matters, specifically.

            Also, to apply collateral estoppel or res judicata, it is required that, among other things, the issue or claim in the current case be identical with one previously litigated and resolved (in the context of collateral estoppel) or for purposes of res judicata, the issue or claim in the current case was or could have been raised in the prior case.  See Hauschildt v. Beckingham, 686 N.W.2d 829, 837, 840 (Minn. 2004) (addressing collateral estoppel and res judicata, respectively).  Neither doctrine is applicable here.  The district court, consistent with the record, distinguished the issues presented in this case from those presented in the prior case by observing that Lovejoy was not involved in the prior case, and that the reason for dismissing the prior termination petition was the county’s failure to present evidence of “the impact that [mother’s] parenting and lifestyle had upon the children” but that this defect was remedied in the current proceeding.

            And both Lovejoy and the impact of mother’s conduct on the children were prominent features of the district court’s analysis.  Consistent with the record, the district court cites numerous examples of Lovejoy’s adverse impact on the circumstances of mother and the children.  The district court’s decision notes in detail how Lovejoy’s presence compromised mother’s ability to care for the children, including (a) mother allowing Lovejoy into her home despite knowing that her daughter has twice previously been sexually assaulted; (b) Lovejoy sending mother “sexually explicit cartoons which he drew, one depicting children having sex and another depicting a large erect penis”; (c) mother’s marriage to Lovejoy “just days before the [second] termination trial, knowing it was [Lovejoy’s] presence in her home which led to the most recent removal of the children and the renewed petition for termination”; and (d) mother’s admission that she trusts Lovejoy around her children “‘as long as she is there.’”  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating that an appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”).  On this record, the questions presented in this second termination proceeding are not identical with those presented in the prior proceeding.  And absent an identical issue or claim, collateral estoppel and res judicata are inapplicable.  See Hauschildt, 686 N.W.2d at 837, 840.


            Mother argues that the district court improperly used her involvement with Lovejoy as a basis for terminating her parental rights when Lovejoy stated that he was willing to undergo therapy and follow recommendations, Lovejoy did not harm the children, and Lovejoy cannot harm the children because he and the children have been removed from mother’s home.

            This argument misconstrues the district court’s ruling.  County witnesses, including daughter’s therapist, mother’s former psychologist, mother’s current psychologist, mother’s case worker, and the guardian ad litem, all testified that while mother’s relationship with Lovejoy was problematic, that relationship was only a symptom of mother’s larger psychological problems and her associated inabilities to make good decisions and to put her children’s needs ahead of her own.  Further, regarding Lovejoy’s willingness to undergo treatment and follow recommendations, mother’s former psychologist testified that persons with Lovejoy’s diagnoses and criminal history need long-term treatment.  In addition, the guardian ad litem testified that she did not believe that Lovejoy would successfully complete treatment.  These circumstances do not fit well with what the record shows to be the children’s current need for permanency.  And the argument that the district court overemphasized Lovejoy’s presence  in its analysis because both Lovejoy and the children have been removed from mother’s home is similarly unavailing.  The marriage by mother, the parent of a sexually abused child, to a sexual offender four days before the second termination trial when mother knew that it was the offender’s presence in the home that prompted the second removal of the children from her home, overwhelmingly supports the district court’s finding that mother’s choices regarding men “are symptomatic of her mental illness.”  Until Lovejoy successfully completes counseling and no longer presents a danger to the children, or until mother can otherwise show that she is willing and able to protect herself and her children from her husband, we cannot say that the record lacks support for the district court’s findings that mother’s personality disorder is a “concern as it relates to her ability to provide safe and stable parenting for her children” and “will always challenge her ability to make safe choices as it relates to her children.”[1]


            The district court terminated mother’s parental rights because she is a palpably unfit parent, because reasonable efforts failed to correct the conditions leading to the children’s (second) out of home placement, and because the children are neglected and in foster care.  See Min. Stat. § 260C.301, subd. 1(b)(4), (5), (8) (2006).  Mother argues that several of the findings of fact underlying these determinations are unsupported by the record.  On appeal from a termination of parental rights, appellate courts review whether the findings of fact show the existence of at least one statutory basis for termination by clear and convincing evidence and whether those findings are supported by substantial evidence and are not clearly erroneous.  In re Children of T.A.A., 702 N.W.2d 703, 708 (Minn. 2005).  This court defers to the district court’s credibility determinations.  In re Welfare of T.D., 731 N.W.2d 548, 555 (Minn. App. 2007).

            Mother argues that the record lacks evidence to support the district court’s finding that her lifestyle and mental health were significant factors in the children’s behavioral problems.  The therapist for mother’s daughter testified that (a) daughter had a “chaotic” childhood; (b) mother encouraged daughter to steal; (c) mother’s conduct has caused daughter to be “parentified”; (d) sometimes daughter does not feel safe with and is anxious around mother, and acts accordingly; and (e) daughter has lasted longer in mother’s care and suffered less damage than many children could because daughter is resilient, but daughter needs stability now and the window of opportunity for daughter to lead a normal life is closing.  Son’s social worker testified that son had a chaotic childhood and needs stability and permanency promptly; that disorder in son’s life upsets son and he has threatened to harm himself and others; that mother cannot now provide the stability that son requires; and that permanency is “[d]efinitely” in son’s best interests.  The children’s mental-health supervisor testified that reunifying mother and the children would result in the deterioration of both children’s mental health; that, while mother loves the children, it is not a healthy relationship; and that the children’s problems are “definitely chronic” and not the result of a healthy family dynamic.  The record and the expert testimony therein support the findings that mother’s mental health and lifestyle are significant factors in her children’s problems.

            Mother argues that the county is responsible for many of the children’s behavioral problems because the county altered the children’s placement several times.  Although the county changed the children’s placement, had mother adequately cared for the children, they would not have been removed from her home the first time.  And if she had adequately progressed in her ability to care for the children, they would not have been removed a second time.  Therefore, we reject this argument.

            Mother challenges the district court’s reference to Lovejoy as an untreated sex offender, given Lovejoy’s testimony that he took an offender evaluation in Arizona.  But taking an offender evaluation is not the same as successfully completing treatment, and there is no evidence in the record that Lovejoy successfully completed treatment.  Moreover, the record we do have on this point suggests that any treatment for Lovejoy will be long-term and have limited prospects for success.

            Mother also challenges the findings that she allowed homeless people into her home while the children were there and that the homeless people had mental-health problems.  But it is undisputed that mother’s former boyfriend, who at least sporadically lived with mother and Lovejoy, periodically invited homeless people into the home and that mother has either consented to or been unable to preclude their presence, suggesting that this pattern will recur in the future.  More important than the living status of those invited into the home is the fact that the stability needed by both children is compromised if the composition of their household constantly changes.

            Mother also makes a conclusory argument that the record does not show her to be a palpably unfit parent in light of the findings and conclusions from the first trial and her subsequent progress in therapy.  But as noted above, (a) the prior petition was dismissed because the county failed to enter evidence on the impact of mother’s conduct on the children, not because mother was a competent parent, and (b) the requirements for applying collateral estoppel and res judicata are not satisfied, and even if they were, neither doctrine automatically must be applied.  Further, mother’s assertion of progress in therapy is not supported by the record.  Her former psychologist testified that mother is a “very challenging” and “exceptional” case, and that the county offered mother “just about every [treatment] option available[,]” but mother still has not changed her behavior.  The children’s mental-health case manager testified that mother has tried to improve her parenting, but has not been successful, and that mother lacks the ability to parent her children.  In addition, mother’s current therapist testified that mother’s persistent refusal or inability to follow recommendations when she knows that she will lose her children if she does not do so is “of grave concern” and that mother has chosen not to comply on a long-term basis despite knowing that she is endangering her children by failing to comply.

            Accordingly, we reject mother’s challenge to the determination that she is a palpably unfit parent.  And absent a successful challenge to one of the statutory grounds used to terminate mother’s parental rights, we need not address the others.  Id. at 708 n.3.  We note, however, that the record supports the district court’s rulings on those bases for termination, as well as the district court’s determination that termination of mother’s parental rights is in the children’s best interests.  See In re Welfare of Child of W.L.P., 678 N.W.2d 703, 711 (Minn. App. 2004) (addressing child’s best interests); In re Welfare of R.T.B., 492 N.W.2d 1, 4 (Minn. App. 1992) (same).






Dated:  _________________                                _________________________________

                                                                                    Judge Natalie E. Hudson


[1] Mother also argues that the district court erroneously focused on her allegedly poor judgment as a parent because her allegedly poor judgment does not show her to be a palpably unfit parent under Minn. Stat. § 260C.301, subd. 1(b)(4) (2006).  But a parent can be palpably unfit to be a party to the parent-child relationship


because of a consistent pattern of specific conduct before the child or of specific conditions directly relating to the parent and child relationship either of which are determined by the court to be of a duration or nature that renders the parent unable, for the reasonably foreseeable future, to care appropriately for [the child].


Minn. Stat. § 260C.301, subd. 1(b)(4) (emphasis added).  In our view, mother’s psychological condition and compromised decision-making process are “conditions directly relating to the parent and child relationship” as evidenced by her decision to marry a convicted sex offender four days before a termination trial prompted by the presence of the offender in her home.  Mother’s assertion to the contrary is neither clear nor explained.