| (Cite
as: 36 P.3d 540, 2001 UT App 353)
Court
of Appeals of Utah.
STATE
of Utah, in the interest of S.D.C., a person under
eighteen years of age.
P.D.C.,
Appellant,
v.
D.J.C.R.,
Appellee.
No.
20000633-CA.
Nov. 23, 2001.
*541
Cindy Barton-Coombs, Roosevelt, for Appellant.
Martha Pierce, Salt Lake
City, and Cleve J. Hatch, Vernal, Guardians Ad Litem.
Before Judges GREENWOOD,
BILLINGS, and DAVIS.
OPINION
BILLINGS, Judge:
**1
This is the second appeal by P.D.C. (Father) concerning the termination
of his parental rights to S.D.C. (Child). In this appeal, Father argues
the juvenile court erred in allowing the guardian ad litem (Guardian)
to file a termination petition following our remand and the juvenile court's
dismissal of a prior petition under the Indian Child Welfare Act (ICWA),
25 U.S.C.A. §§ 1901-1963 (West 2001). Father also argues the
trial court erred in concluding that ICWA's active efforts requirement
was met. We affirm.
BACKGROUND
**2
D.J.C.R. (Mother) and Father divorced in 1989, and Mother was granted
custody of Child and Child's brothers,
[FN1] subject to reasonable visitation by Father. Father and the children
are enrolled members of the Eastern
Shoshone Tribe.
FN1.
Child's brothers have reached the age of majority and are not parties
to this proceeding.
**3
In 1993, Mother and D.R.R. (Stepfather) petitioned to have the children
adopted by Stepfather. Mother then filed a petition to terminate Father's
parental rights. Following a trial on the termination petition, the juvenile
court terminated Father's parental rights under Utah law and held that
ICWA did not apply.
**4
Father appealed the termination of his parental rights to this court.
We affirmed the termination under Utah law, but held that ICWA applied.
See In re D.A.C.,
933 P.2d 993, 1003 (Utah Ct.App.1997). We held the parties had stipulated
that ICWA's active efforts requirement had been met, eliminating this
issue from consideration. See
id. at 1002.
However, we remanded to the juvenile court for a determination of whether
the evidence presented at trial established beyond a reasonable doubt
that Father's visitation would likely cause the children serious emotional
or physical damage, as required to terminate Father's parental rights
under *542
ICWA. See id.
at 1003. On remand, in December 1997, the juvenile court ruled the evidence
was insufficient to establish beyond a reasonable doubt that continued
visitation by
Father was likely to result in serious emotional or physical damage to
the children, and accordingly dismissed the termination petition.
**5
In October of 1999, two years after the dismissal of Mother's termination
petition, Father filed an order to show cause to enforce his visitation
rights in district court. Mother responded by filing for a protective
order against Father, which was granted by the district court. On November
5, 1999, Guardian, who had been appointed to represent Child during the
first termination proceeding, filed a motion to intervene in the visitation
enforcement proceeding. That same day, Guardian filed a petition to terminate
Father's parental rights in juvenile court.
**6
On December 14, 1999, the district court granted Guardian's motion to
intervene in the visitation enforcement proceeding and certified the matter
to the juvenile court to be heard with the termination petition. The Eastern
Shoshone Tribe was notified of the second termination petition, but declined
to intervene.
**7
At trial on the second termination petition, the juvenile court required
Guardian to show a change in circumstances since the first termination
proceeding that warranted termination of Father's parental rights under
ICWA. Following the trial, the juvenile court concluded the evidence was
sufficient to warrant termination of Father's parental rights under ICWA.
In sum, the juvenile court found that at the time of the first termination
proceeding, there
was some prospect that Child's feelings towards Father would "mellow."
However, at the time of the second termination proceeding, Child was more
intimidated by Father, suffered from post-traumatic stress disorder, and
adamantly desired that Father's parental rights be terminated. The court
also found that such intimidation was warranted given Father's "frightening"
courtroom demeanor and history of violent behavior. The court further
found that Father had failed to rehabilitate despite his lengthy time
in prison and was still incarcerated after violating parole. The court
concluded that Child would likely suffer serious emotional or physical
damage if she were required to visit Father and therefore terminated Father's
parental rights. Father appeals.
ISSUES AND STANDARDS OF
REVIEW
**8
First, Father argues the juvenile court erred in concluding that Guardian
had authority to file the termination petition. We review questions of
statutory interpretation for correctness. See
In re M.C.,
940 P.2d 1229, 1233 (Utah Ct.App.1997). Second, Father argues res judicata
barred the second termination petition. "The application of res judicata
is a question of law, reviewed for correctness with no deference given
to the [juvenile] court." In
re H.J., 1999
UT App 238, ¶ 15, 986 P.2d 115. Finally, Father argues ICWA's active
efforts requirement was not met in either termination proceeding. As to
the first termination proceeding,
we will not overrule another panel unless a decision "is clearly
erroneous or conditions have changed so as to render the prior decision
inapplicable." State
v. Menzies,
889 P.2d 393, 399 n. 3 (Utah 1994) (quotations and citation omitted).
As to the second termination proceeding, when a party fails to challenge
and marshal the evidence underlying ultimate findings, we assume the juvenile
court's judgment was correct. See
Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating
Co., 909 P.2d
225, 236 (Utah 1995).
[FN2]
FN2.
For a termination petition to succeed, state law requirements must be
met in addition to ICWA requirements. See
In re S.A.E.,
912 P.2d 1002, 1004 (Utah Ct.App.1996). The parties have agreed that Father's
parental rights can be terminated under Utah law; therefore the only remaining
issue is whether Father's rights can be terminated under ICWA.
ANALYSIS
I. Guardian's Authority to File Termination Petition
**9
Father argues the juvenile court erred in concluding Guardian had the
authority to *543
file the petition to terminate his parental rights. Guardian responds
that as an appointed guardian ad litem, he had authority as an interested
party to file the second termination petition.
**10
We agree with Guardian. As an appointed representative of Child, Guardian
was an interested party with authority to file the second termination
petition under Utah Code Ann. § 78-3a-404(1)(a) (Supp.2001). This
section provides that "[a]ny interested party ... may file a petition
for termination of the parent-child relationship." Id.
**11
Furthermore, Utah Code Ann. § 78-3a-912(1) (1996 & Supp.2001)
allows a juvenile court to appoint a guardian ad litem to "represent
the best interest of a minor involved in any case before the court."
Once appointed, the statute requires the guardian to perform the broad
task of "represent[ing] the best interest of the minor in all proceedings."
Id.
§ 78-3a-912(3)(a). Additionally, "[t]he attorney guardian ad
litem shall continue to represent the best interest of the minor until
released from his [or her] duties by the court." Id.
§ 78-3a-912(5). We conclude Guardian was properly appointed to represent
Child's interests and had the statutory authority to file the termination
petition in the present case.
[FN3]
FN3.
Father also only generally asserts, without legal analysis or authority,
that Guardian's actions violated due process. We therefore decline to
consider this assertion. See
Smith v. Smith,
1999 UT App 370, ¶ 8, 995 P.2d 14, cert.
denied, 4 P.3d
1289 (Utah 2000).
II. Res Judicata
**12
Father argues the second termination petition was barred by res judicata.
Res judicata has two distinct branches. The first branch, claim preclusion,
"bars the relitigation of claims that have been previously litigated
between the same parties." In
re T.J., 945
P.2d 158, 162 (Utah Ct.App.1997). The second branch, issue preclusion,
" 'prevents relitigation of issues that have been decided, though
the causes of action or claims for relief are not the same.' " Id.
(quoting In
re J.J.T.,
877 P.2d 161, 163 (Utah Ct.App.1994)). Although distinct, both branches
are intended " 'to protect litigants from the burden of relitigating
an identical issue with the same party or his [or her] privy and to promote
judicial economy by preventing needless litigation.' " J.J.T.,
877 P.2d at 164 (quoting Smith
v. Smith, 793
P.2d 407, 409 (Utah Ct.App.1990)).
**13
Claim preclusion requires satisfaction of three elements:
"First,
both cases must involve the same parties or their privies. Second, the
claim that is alleged to be barred must have been presented in the first
suit or must be one that could and should have been raised in the first
action. Third, the first suit must have resulted in a final judgment on
the merits."
T.J.,
945 P.2d at 162 (quoting J.J.T.,
877 P.2d at 163) (quotations and citation
omitted). Claim preclusion will bar a subsequent cause of action if "the
cause of action in the [subsequent] suit [is] identical to the one brought
in the prior suit." Macris
& Assocs. v. Neways, Inc.,
2000 UT 93, ¶ 28, 16 P.3d 1214.
**14
Father asserts claim preclusion barred the second termination petition
because the same result was requested and no new facts were alleged in
support of the petition. We disagree and conclude the second petition
was a different cause of action based on new operative facts.
**15
We have held that "[w]here the two causes of action rest on different
facts, and evidence of a different kind or character is necessary to sustain
them, the claims are not the same for purposes of res judicata."
J.J.T.,
877 P.2d at 165 (citing Schaer
v. Department of Transp.,
657 P.2d 1337, 1340 (Utah 1983)); see
also Collins v. Sandy City Bd. of Adjustment,
2000 UT App 371,¶ 16, 16 P.3d 1251 (noting "general rule that
a subsequent change in the operative facts ... has generally relieved
a party from the application of res judicata") cert.
granted, 29
P.3d 1 (Utah 2001); T.J.,
945 P.2d at 164-65 (Wilkins, J., concurring) (concluding that although
res judicata applies in termination proceedings, res judicata would not
bar second termination petition filed after appreciable passage of time
because claim could not have been presented in first suit and issues are
not identical due to passage of time). *544
Furthermore, in prior termination proceedings we have emphasized
"that a hyper-technical application of res judicata is improper"
because "[c]onsiderations regarding a child's welfare are rarely,
if ever, static." J.J.T.,
877 P.2d at 163.
**16
Following our remand in the first termination proceeding, the juvenile
court summarily ruled that Father's parental rights could not be terminated
because the evidence in the first termination trial did not establish
beyond a reasonable doubt that Child would likely suffer serious emotional
or physical damage by continued visitation with Father.
[FN4] In the second termination proceeding, the juvenile court focused
on whether the circumstances had changed such that termination of Father's
parental rights was warranted under ICWA at the time of the second petition.
The court specifically found new facts, unchallenged by Father. In sum,
the court found that although at the time of the first termination proceeding
"there was some prospect" that Child's feelings would "mellow,"
now that she is "of the age ... under Utah law to ... voice her opinion,"
she is adamant that his parental rights be terminated and it is unlikely
her attitude will change. The court further found that although there
was some prospect that Father would "become less intimidating,"
Child continues to suffer from post-traumatic stress and is "fearful
to the point that she is hyper vigilant [sic]." The court also found
that Father has a history of violent behavior and his "frightening"
courtroom demeanor was "very troubling [even for] adults," and
"certainly would cause consternation, fear,
and emotional trauma" for Child. Child's brothers, now of majority
age, do not wish to visit Father, and Child's visits would now therefore
be without them. The court additionally found that Father has violated
parole twice since the first termination proceeding and has failed to
rehabilitate "despite the lengthy time he has spent in prison,"
demonstrating "the prospect for improvement ... is remote."
FN4.
In relevant part, ICWA provides, "No termination of parental rights
may be ordered ... in the absence of a determination, supported by evidence
beyond a reasonable doubt, ... 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." 25 U.S.C.A. § 1912(f) (West
2001).
**17
Furthermore, contrary to Father's assertion, the record establishes the
parties did not relitigate the facts underlying the juvenile court's conclusions
in the first termination proceeding. Rather, in the second termination
proceeding, the juvenile court properly considered the findings from the
first termination proceeding, specifically noting that it was bound by
those findings, in order to determine whether the parties' circumstances
had changed such that termination of Father's parental rights was appropriate
under ICWA at the time of the second petition.
[FN5] See In
re J.R., 711
P.2d 701, 703 (Colo.Ct.App.1985) (concluding res judicata did not bar
court from considering evidence from first termination proceeding because
sufficient additional evidence justified court's conclusion that termination
was warranted following second termination proceeding). We accordingly
conclude the second termination petition was not barred by res judicata.
[FN6]
FN5.
Father argues the juvenile court should have required Guardian to establish
a "significant change in circumstances" similar to the threshold
requirement of a substantial change in circumstances required in modification
of child custody awards under divorce decrees. Father's brief does not
contain any citation to the record, in accordance with Rule 24(a)(5)(A)
of the Utah Rules of Appellate Procedure, that shows this argument was
preserved for appeal. In our review of the record we were unable to find
any specific objection to the lack of such evidentiary threshold. We therefore
decline to consider this argument. See
In re E.R.,
2001 UT App 66, ¶ 9, 21 P.3d 680.
FN6.
Father also argues issue preclusion barred Guardian from relitigating
whether allowing Father to maintain his parental rights is likely
to result in serious emotional or physical damage to Child. Father's argument
essentially is a restatement of his claim preclusion argument. Based on
our claim preclusion analysis above, this argument fails. Whether Child
would likely suffer serious emotional or physical damage if Father were
allowed to maintain his parental rights at the time of the second termination
proceeding is not the same issue as whether Child was likely to suffer
serious emotional or physical damage at the time of the first termination
proceeding. Therefore, we conclude issue preclusion did not bar the second
termination proceeding.
*545
III. Active Efforts under ICWA
**18
Father argues ICWA's active efforts requirement was not met in either
the first or second termination proceeding. ICWA requires that "[a]ny
party seeking ... termination of parental rights to[ ] an Indian child
under State law shall satisfy the court that active efforts have been
made to provide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these efforts have
proved unsuccessful." 25 U.S.C.A. § 1912(d) (West 2001).
A. First Termination Proceeding
**19
Father argues the parties did not stipulate that active efforts were unsuccessful
in the first proceeding. In the first termination proceeding,
we explained that the trial court had found the parties stipulated that
active efforts were unsuccessful, and therefore we concluded that "[t]his
record acknowledgment of the stipulation eliminates this issue."
In re D.A.C.,
933 P.2d 993, 1002 (Utah Ct.App.1997). If this conclusion was in error,
Father's remedy was to file a petition for rehearing. See
Utah R.App. P. 35(a). Because Father did not file for a petition for rehearing,
this court is bound by the court's previous holding under the doctrine
of horizontal stare decisis. See
State v. Menzies,
889 P.2d 393, 399 n. 3 (Utah 1994) ("Horizontal stare decisis ...
requires that a court of appeals follow its own prior decisions. This
doctrine applies with equal force to courts comprised of multiple panels,
requiring each panel to observe the prior decisions of another.").
B. Second Termination
Proceeding
**20
In the second proceeding, the trial court specifically found that the
active efforts prong of ICWA was satisfied: "The Court finds that
Utah Department of Corrections has made extensive efforts to remediate
[Father's] behavior to no avail. The fact that [Father's] parole has been
revoked numerous times is indication that [he] has resisted any efforts
made to remediate his conduct." Father does not challenge this finding
or argue that the evidence supporting the conclusion is insufficient.
Accordingly, we decline to overturn the trial court's conclusion that
this requirement of ICWA was
satisfied. See
Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline Operating
Co., 909 P.2d
225, 236 (Utah 1995) (assuming correctness of trial court ruling when
party "[did] not challenge the factual predicates of the district
court's ultimate legal conclusion or the sufficiency of those findings").
[FN7]
FN7.
Father also argues the juvenile court was hostile to ICWA and Father's
rights as an American Indian. After considering Father's argument we conclude
it is without merit. See
State v. Mathews,
13 Utah 2d 391, 375 P.2d 392, 394 (Utah 1962) (rejecting claim of bias
and concluding trial court acted within "considerable latitude permitted
in dealing with counsel to expedite trial"); see
also State v. Carter,
776 P.2d 886, 888 (Utah 1989) (stating it is an "established principle
generally applicable to all civil and criminal cases ... that this Court
need not analyze and address in writing each and every argument, issue,
or claim raised").
CONCLUSION
**21
We conclude Guardian, as an interested party, had the authority to file
the second termination petition and the petition was not barred by res
judicata. We also conclude the active efforts requirement of ICWA was
satisfied.
We accordingly affirm the juvenile court's termination of Father's parental
rights.
**22
WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and JAMES Z. DAVIS, Judge.
36 P.3d 540, 435 Utah
Adv. Rep. 22, 2001 UT App 353
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