In re Interest of Noah B.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/03/2017 09:08 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
In re I nterest of Noah B. et al., children under
18 years of age.
State of Nebraska, appellant, v. Griel B.
and M ichaela B., appellees.
___ N.W.2d ___
Filed February 3, 2017. No. S-16-031.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Motions to Dismiss: Rules of the Supreme Court: Pleadings: Appeal
and Error. The trial court’s grant of a motion to dismiss for failure
to state a claim under Neb. Ct. R. Pldg. § 6-1112(b)(6) is reviewed de
novo, accepting all the allegations in the complaint as true and drawing
all reasonable inferences in favor of the nonmoving party.
3. Judgments: Res Judicata: Collateral Estoppel: Appeal and Error.
The applicability of claim and issue preclusion is a question of law. On
a question of law, an appellate court reaches a conclusion independent
of the court below.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
preserved for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter.
5. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902
(Reissue 2016), there are three types of final orders which may be
reviewed on appeal: (1) an order which affects a substantial right and
which determines the action and prevents a judgment, (2) an order
affecting a substantial right made during a special proceeding, and (3)
an order affecting a substantial right made on summary application in an
action after judgment is rendered.
6. ____: ____. Numerous factors determine when an order affects a sub-
stantial right for purposes of appeal. Broadly, these factors relate to the
importance of the right and the importance of the effect on the right by
the order at issue. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
7. Final Orders. Whether the effect of an order is substantial depends
on whether it affects with finality the rights of the parties in the sub-
ject matter.
8. Juvenile Courts: Minors. The State’s right in juvenile proceedings is
derived from its parens patriae interest, and it is pursuant to that interest
that the State has enacted the Nebraska Juvenile Code.
9. ____: ____. The State has a right to protect the welfare of its resi-
dent children.
10. Final Orders: Jurisdiction. An order dismissing a supplemental peti-
tion in its entirety with no leave to amend is a final order when it
prevents the State from pursuing adjudication and disposition on addi-
tional grounds.
11. Judgments: Jurisdiction: Res Judicata. Claim preclusion bars the
relitigation of a claim that has been directly addressed or necessarily
included in a former adjudication if (1) the former judgment was ren-
dered by a court of competent jurisdiction, (2) the former judgment was
a final judgment, (3) the former judgment was on the merits, and (4) the
same parties or their privies were involved in both actions.
12. Res Judicata. The doctrine of claim preclusion bars relitigation not only
of those matters actually litigated, but also of those matters which might
have been litigated in the prior action.
13. ____. The doctrine of claim preclusion rests on the necessity to termi-
nate litigation and on the belief that a person should not be vexed twice
for the same cause.
14. Judgments: Collateral Estoppel. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
15. Res Judicata: Collateral Estoppel. Whether the doctrine of either
claim preclusion or issue preclusion applies in any given case is neces-
sarily fact dependent.
16. Motions to Dismiss: Rules of the Supreme Court: Pleadings. Because
a motion pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(6) tests the legal
sufficiency of the complaint, not the claim’s substantive merits, a court
may typically look only at the face of the complaint to decide a motion
to dismiss.
17. Rules of the Supreme Court: Pleadings. Dismissal under Neb. Ct. R.
Pldg. § 6-1112(b)(6) should be granted only in the unusual case in which
a plaintiff includes allegations that show on the face of the complaint
that there is some insuperable bar to relief.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
18. Motions to Dismiss: Summary Judgment: Pleadings. If, on a motion
to dismiss for failure to state a claim, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and the parties must be given reasonable
opportunity to present all material made pertinent to such a motion.
19. Judicial Notice: Motions to Dismiss: Rules of the Supreme Court:
Summary Judgment: Pleadings. A court may take judicial notice of
matters of public record without converting a motion to dismiss under
Neb. Ct. R. Pldg. § 6-1112(b)(6) into a motion for summary judgment.
20. Res Judicata: Motions to Dismiss: Rules of the Supreme Court:
Pleadings. As a general proposition, it will be a rare case where the face
of a pleading contains the facts necessary to permit a court to determine
the applicability of claim preclusion on a motion to dismiss under Neb.
Ct. R. Pldg. § 6-1112(b)(6).
21. Appeal and Error. An appellate court may, at its discretion, discuss
issues unnecessary to the disposition of an appeal where those issues are
likely to recur during further proceedings.
22. Juvenile Courts: Res Judicata. The doctrine of claim preclusion can-
not settle a question of a child’s welfare for all time to come; it cannot
prevent a court at a subsequent time from determining what is best for
the children at that time.
23. ____: ____. The policies of finality and judicial efficiency advanced by
the doctrine of claim preclusion must, when necessary, give way when
strict application of the doctrine would frustrate the central goal of pro-
tecting the welfare of children.
24. ____: ____. The doctrine of claim preclusion should not be strictly
applied in abuse and neglect cases when doing so would fail to protect
children from continuing abuse or neglect.
25. Juvenile Courts: Jurisdiction: Res Judicata. The best interests of
Nebraska’s children cannot be protected by a technical application of
claim preclusion that bars the State from filing a supplemental petition
seeking to adjudicate continuing allegations of abuse and neglect, sim-
ply because the State knew about such allegations previously and did
not initially seek adjudication on that basis.
26. ____: ____: ____. The State does not have unfettered authority to
adjudicate abuse and neglect allegations in a piecemeal fashion, free
from the constraints of claim preclusion. Claim preclusion applies
in abuse and neglect cases, but when a supplemental petition seeks
adjudication on grounds not alleged in a prior adjudication, claim
preclusion will not limit the proof to only facts or evidence that was
not considered in, or which came into being after, the prior adjudica-
tion proceeding.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
27. Juvenile Courts: Jurisdiction: Res Judicata: Evidence: Proof. If, in
a supplemental petition, the State relies solely on evidence known at
the time of a prior adjudication, the doctrine of claim preclusion will
apply and bar the State from proceeding. If, however, the State relies on
evidence from the time period after the prior adjudication to prove the
allegations of the supplemental petition, the doctrine of claim preclusion
will not bar the proof, even if the new evidence is used in conjunction
with evidence known at the time of the prior adjudication.
28. Juvenile Courts. The welfare of Nebraska’s children demands that
courts place greater emphasis on protecting them from continuing abuse
and neglect than on strict application of a judicial policy designed to
reduce repeat litigation.
Appeal from the Separate Juvenile Court of Douglas
County: Wadie Thomas, Judge. Vacated and remanded for fur-
ther proceedings.
Donald W. Kleine, Douglas County Attorney, Patrick McGee,
Anthony Hernandez, and Megan Furey, Senior Certified Law
Student, for appellant.
Thomas C. Riley, Douglas County Public Defender, and
Matthias J. Kraemer for appellee Griel B.
Liam K. Meehan, of Schirber & Wagner, L.L.P., for appellee
Michaela B.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
The primary question presented in this appeal is how the
doctrines of claim preclusion and issue preclusion apply in an
abuse and neglect proceeding when the State seeks to assert
supplemental grounds for adjudication under Neb. Rev. Stat.
§ 43-247(3)(a) (Supp. 2013). On this record, we conclude the
juvenile court erred when it dismissed the State’s supplemental
petition, finding it was barred by claim and issue preclusion.
We vacate the order of dismissal and remand the matter for
further proceedings.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
BACKGROUND
Original Petition A lleging
Physical A buse
Griel B. and Michaela B. are the biological parents of
Noah B., Cheyenne B., and Ciara B. Noah was born in 1998,
Cheyenne was born in 1999, and Ciara was born in 2001.
On March 17, 2014, the State filed a petition alleging
the children came within the meaning of § 43-247(3)(a),
in that Griel subjected them to inappropriate physical con-
tact and Michaela failed to protect them from inappropriate
physical contact. On the same date, the State filed an ex parte
motion for temporary custody of the children. The motion
was granted.
On May 30, 2014, the Nebraska Department of Health and
Human Services filed an ex parte motion to suspend contact
between the parents and children. An affidavit attached to the
motion alleged that both Cheyenne and Ciara had made sexual
abuse allegations against Griel during forensic interviews. At
the hearing on the motion, a caseworker testified that both
Cheyenne and Ciara had reported being sexually abused by
Griel. In an order entered July 2, the court granted the motion
and suspended Griel’s contact with all the children.
The matter proceeded to adjudication on the original petition
alleging physical abuse; the State did not seek leave to amend
the petition to add sexual abuse as a factual basis for adjudica-
tion under § 43-247(3)(a). The adjudication hearing took place
over a 3-day period. Noah and Cheyenne both testified, but
Ciara did not. The record shows Ciara is a child with cognitive
disabilities resulting from a stroke or head injury.
Noah testified that he and his sisters had been physically
and emotionally abused by Griel. Cheyenne also testified that
she and her siblings had been physically abused by Griel, and
in addition, she testified that Griel had sexually abused her on
multiple occasions before she was removed from the family
home. The first day of trial recessed with Cheyenne on the wit-
ness stand.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
When cross-examination resumed 2 weeks later, Cheyenne
recanted her earlier testimony. On redirect, Cheyenne admit-
ted she had talked with her parents the previous evening,
and further admitted she wanted to go back home with them.
Cheyenne was asked, “Do you think that coming in today
and saying these allegations didn’t happen will get you to
go home?” She replied, “I don’t know.” The State attempted
to show that she had changed her testimony after having
unsupervised contact with her parents in violation of a court
order. Specifically, the State questioned Michaela regarding
contact with Cheyenne the night before trial, but Michaela
objected to the questioning on Fifth Amendment grounds.
The court sustained the objection, reasoning that “she has a
qualified right to remain silent as to anything that might tend
to show she committed a crime [and w]itness tampering is
a crime.”
After the State rested its case, neither Griel nor Michaela
presented evidence. The State focused its closing argument
on the evidence adduced regarding allegations of physical
abuse, and argued it had proved such allegations. The juve-
nile court found all three children were within the meaning of
§ 43-247(3)(a) as to both parents due to physical abuse. In its
written order, the court made no specific findings regarding
sexual abuse, but found Cheyenne was “not a credible wit-
ness” and stated it gave “no credence” to her testimony. All
three children were placed in the custody of the Department of
Health and Human Services and ordered to be placed outside
the home. No appeal was taken from this adjudication.
The dispositional order articulated a permanency objec-
tive of reunification with a concurrent plan of guardianship.
The court also adopted a case plan which included supervised
visitation, family therapy, and a requirement that Griel and
Michaela complete a parenting assessment. In the months after
the adjudication, Cheyenne and Ciara continued to tell provid-
ers and others that Griel had sexually abused them before they
were removed from the family home.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
Supplemental Petition
A lleging Sexual A buse
On November 4, 2015, the State filed a supplemental peti-
tion alleging all three children were within the meaning of
§ 43-247(3)(a), because Griel had subjected one or more of
them to inappropriate sexual contact and Michaela had failed to
protect them from such contact. The supplemental petition did
not allege specific dates or timeframes regarding the alleged
sexual abuse.
The State also filed a notice of intent to present hearsay tes-
timony.1 This notice identified some of the evidence the State
intended to offer in support of its supplemental petition. That
evidence included recent statements made by Ciara to several
persons involved in her care reporting that Griel touched her
inappropriately before the children were removed from the
home. The evidence also included recent statements made by
Cheyenne to her foster parent and her psychiatrist reporting
that Griel sexually abused her and Ciara before the girls were
removed from the family home. Summarized, the State’s notice
showed it intended to offer hearsay statements which were
made after the original adjudication but which related to inci-
dents of sexual abuse that occurred before the adjudication and
before the children were removed from the home.
Motion to Dismiss
Griel moved to dismiss the supplemental petition pursuant
to Neb. Ct. R. Pldg. § 6-1112(b)(6) (rule 12(b)(6)), alleging
it failed to state a claim upon which relief could be granted,
because the allegations raised therein were, or could have been,
litigated in the prior adjudication and were barred by the doc-
trines of claim preclusion and issue preclusion. Alternatively,
Griel moved to strike the supplemental petition. Michaela filed
similar motions.
1
See Neb. Rev. Stat. § 27-803(7) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
At the hearing on the parents’ motions, all parties referred
extensively to the record and the prior proceedings, but offered
no evidence. Griel and Michaela argued the supplemental peti-
tion was barred by claim and issue preclusion, because the
allegations of sexual abuse were known to all the parties before
the initial adjudication hearing and some evidence of sexual
abuse was adduced from Cheyenne during the first adjudica-
tion hearing.
The State opposed the motions to dismiss on several
grounds. First, it argued that even under a traditional appli-
cation of claim preclusion, the issue of sexual abuse was
not alleged or tried on the merits in the first adjudication,
particularly as regards Ciara, who did not testify. The State
acknowledged testimony of sexual abuse had been elicited
from Cheyenne during the first adjudication hearing, but
argued that the court made no findings regarding sexual abuse
and there were no dispositional orders entered addressing
sexual abuse.
The State’s primary argument was that the doctrines of
claim and issue preclusion apply differently “in matters con-
cerning the best interest of children.” The State relied on the
cases of In re Interest of V.B. and Z.B.2 and In re Interest of
Marcus W. et al.3 for the proposition that claim and issue pre-
clusion cannot settle the question of a child’s welfare for all
time to come. The State argued that when a supplemental peti-
tion is filed, claim preclusion does not limit the proof to only
facts or evidence which was not considered in, or which came
into being after, the first adjudication. The State argued that
after the first adjudication hearing, additional evidence of prior
sexual abuse was discovered and prompted the State to con-
clude it was in the children’s best interests to seek additional
2
In re Interest of V.B. and Z.B., 220 Neb. 369, 370 N.W.2d 119 (1985).
3
In re Interest of Marcus W. et al., 11 Neb. Ct. App. 313, 649 N.W.2d 899
(2002).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
grounds for adjudication. The State advised the court that in
addition to the recent disclosures of sexual abuse contained
in the State’s notice of intent to present hearsay statements,
there was evidence that after the initial adjudication, Griel
asked Cheyenne during a visit whether she “would still have
a desire” to have sexual contact with him and Ciara reported
being afraid that once visits were no longer supervised, Griel
would subject her to more sexual contact. The State argued
that “all of these disclosures, in combination, present sufficient
evidence to now move forward with an adjudication as to inap-
propriate sexual contact.” The State concluded by arguing,
“There [is] a need for new dispositional orders, as witnesses
would testify that the children have been acting out due to
sexual abuse and it would be in the best interest of the children
not to bar this proceeding.”
The trial court took judicial notice of several prior pleadings
and orders, and also indicated it “kind of remember[ed]” some
of the testimony from the first adjudication and Cheyenne’s
recanting of her testimony. Briefing was requested, and the
matter was taken under advisement.
In an order entered December 10, 2015, the court granted
the parents’ motions and dismissed the State’s supplemental
petition in its entirety, finding it was barred by the doctrines of
claim and issue preclusion. The State timely appealed, and we
moved the case to our docket on our own motion pursuant to
our statutory authority to regulate the caseloads of the appel-
late courts of this state.4
ASSIGNMENTS OF ERROR
The State assigns, restated and consolidated, that the juve-
nile court erred in dismissing the supplemental petition on the
bases of claim preclusion and issue preclusion.
4
Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings.5
[2] The trial court’s grant of a motion to dismiss for fail-
ure to state a claim under rule 12(b)(6) is reviewed de novo,
accepting all the allegations in the complaint as true and
drawing all reasonable inferences in favor of the nonmov-
ing party.6
[3] The applicability of claim and issue preclusion is a ques-
tion of law.7 On a question of law, an appellate court reaches a
conclusion independent of the court below.8
ANALYSIS
We begin by noting that in the past, claim preclusion and
issue preclusion were referred to as res judicata and collateral
estoppel, respectively.9 We have expressed a preference for
using the modern terminology,10 and we therefore use the terms
“claim preclusion” and “issue preclusion” in our analysis of the
issues presented.
Final Order
[4] In a juvenile case, as in any other appeal, before reach-
ing the legal issues preserved for review, it is the duty of an
appellate court to determine whether it has jurisdiction over
the matter.11 Griel and Michaela contend we lack jurisdiction to
decide this case, because the order dismissing the supplemental
petition was not a final, appealable order.
5
In re Interest of Alec S., 294 Neb. 784, 884 N.W.2d 701 (2016).
6
In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).
7
Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
8
Id.
9
Id.
10
See id.
11
In re Interest of Jassenia H., 291 Neb. 107, 864 N.W.2d 242 (2015).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
[5] Our jurisdiction to review the juvenile court’s December
10, 2015, order depends on whether it is a final order.12 Under
Neb. Rev. Stat. § 25-1902 (Reissue 2016), there are three
types of final orders which may be reviewed on appeal: (1) an
order which affects a substantial right and which determines
the action and prevents a judgment, (2) an order affecting a
substantial right made during a special proceeding, and (3) an
order affecting a substantial right made on summary application
in an action after judgment is rendered.13 The first and third
categories of final order are not implicated here. But a proceed-
ing before a juvenile court is a special proceeding for appellate
purposes,14 so we must determine whether the order dismissing
the State’s supplemental petition affected a substantial right.
[6,7] Numerous factors determine when an order affects a
substantial right for purposes of appeal. Broadly, these factors
relate to the importance of the right and the importance of the
effect on the right by the order at issue.15 It is not enough that
the right itself be substantial; the effect of the order on that
right must also be substantial.16 Whether the effect of an order
is substantial depends on “‘“whether it affects with finality the
rights of the parties in the subject matter.”’”17
[8,9] The State’s right in juvenile proceedings is derived
from its parens patriae interest,18 and it is pursuant to that inter-
est that the State has enacted the Nebraska Juvenile Code.19
The State has a right to protect the welfare of its resident
12
See Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016).
13
In re Interest of Karlie D., 283 Neb. 581, 811 N.W.2d 214 (2012); In re
Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736 (2011).
14
In re Interest of Meridian H., 281 Neb. 465, 798 N.W.2d 96 (2011).
15
Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).
16
Id.
17
Id. at 581, 879 N.W.2d at 33.
18
In re Interest of Karlie D., supra note 13.
19
In re Interest of R.G., 238 Neb. 405, 470 N.W.2d 780 (1991), disapproved
on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582 N.W.2d 350
(1998).
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IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
children,20 and we have observed that “[o]ne would be hard
pressed to cite a governmental interest of greater import.”21
This right is especially prominent in juvenile adjudications,
because the purpose of the adjudication phase of a juvenile
proceeding is to protect the interests of the child.22
[10] The December 10, 2015, order dismissed the supple-
mental petition in its entirety with no leave to amend, thus
foreclosing the State from pursuing adjudication and disposi-
tion on grounds of sexual abuse, and preventing the State from
seeking to protect the children from such abuse. We conclude,
on these facts, that the order of dismissal affected a substantial
right of the State and is a final, appealable order. We proceed
to consideration of the merits.
Dismissal of
Supplemental Petition
[11-13] The juvenile court dismissed the supplemental peti-
tion, finding it was barred by the doctrines of claim preclusion
and issue preclusion. Claim preclusion bars the relitigation
of a claim that has been directly addressed or necessarily
included in a former adjudication if (1) the former judgment
was rendered by a court of competent jurisdiction, (2) the for-
mer judgment was a final judgment, (3) the former judgment
was on the merits, and (4) the same parties or their privies
were involved in both actions.23 The doctrine bars relitigation
not only of those matters actually litigated, but also of those
matters which might have been litigated in the prior action.24
The doctrine rests on the necessity to terminate litigation and
on the belief that a person should not be vexed twice for the
same cause.25
20
In re Interest of Karlie D., supra note 13.
21
In re Interest of R.G., supra note 19, 238 Neb. at 418, 470 N.W.2d at 790.
22
In re Interest of Karlie D., supra note 13.
23
In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
24
Id.
25
Id.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
[14] Issue preclusion applies where (1) an identical issue
was decided in a prior action, (2) the prior action resulted in
a final judgment on the merits, (3) the party against whom the
doctrine is to be applied was a party or was in privity with a
party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action.26
[15-19] Whether either preclusion doctrine applies in any
given case is necessarily fact dependent. In this case, Griel
and Michaela raised the applicability of claim and issue pre-
clusion via motions to dismiss under rule 12(b)(6). Because
a rule 12(b)(6) motion tests the legal sufficiency of the
complaint, not the claim’s substantive merits, a court may
typically look only at the face of the complaint to decide a
motion to dismiss.27 Dismissal under rule 12(b)(6) should be
granted only in the unusual case in which a plaintiff includes
allegations that show on the face of the complaint that there
is some insuperable bar to relief.28 If, on a motion to dismiss
for failure to state a claim, “matters outside the pleading are
presented to and not excluded by the court,”29 the motion
shall be treated as one for summary judgment and the parties
must be given reasonable opportunity to present all material
made pertinent to such a motion.30 However, a court may take
judicial notice of matters of public record without convert-
ing a rule 12(b)(6) motion to dismiss into a motion for sum-
mary judgment.31
[20] As a general proposition, it will be a rare case where
the face of a pleading contains the facts necessary to permit a
court to determine the applicability of claim preclusion on a
26
Hara v. Reichert, supra note 7.
27
DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013).
28
Id.
29
Neb. Ct. R. Pldg. § 6-1112(b).
30
See DMK Biodiesel v. McCoy, supra note 27. See, also, In re Adoption of
Kenten H., supra note 6.
31
Id.
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IN RE INTEREST OF NOAH B. ET AL.
Cite as 295 Neb. 764
motion to dismiss under rule 12(b)(6).32 This is not that case.
The supplemental petition did not allege specific dates or
timeframes regarding the alleged sexual abuse, and made no
reference to the earlier adjudication proceedings. On its face,
it contained no facts relevant to the preclusion analysis.
The juvenile court took judicial notice of certain prior fil-
ings in the case, and we have said that when such filings are
matters of public record, they can be judicially noticed without
converting a motion to dismiss into a motion for summary
judgment.33 However, our review of the record shows that the
court considered facts and evidence beyond any matters of
public record which it judicially noticed.
As noted, the State presented to the court a notice of intent
to offer hearsay evidence and, in doing so, argued as a matter
of fact that both Cheyenne and Ciara had made disclosures
of sexual abuse after the original adjudication. The State also
informed the court it had additional evidence related to state-
ments made by Griel to Cheyenne during visitations and by
Ciara after the original adjudication. None of these “facts”
could properly be considered by the court in the context of
deciding a motion to dismiss.
In its written order dismissing the supplemental petition,
the court found that “the State as well as all other parties to
this case were aware of the sexual abuse allegations involving
the minor children . . . prior to the [first] adjudication in this
matter.” The court further found that in the first adjudication,
“the State called the minor child, Cheyenne as a witness and
after she extensively testified to the alleged sexual abuse by
her father, Cheyenne inexplicably recanted and admitted that
she had lied about the allegations of abuse including sexual
abuse.” And the court also made a finding that “the State cer-
tainly could have called the minor child, Ciara as a witness,
32
See John P. Lenich, Nebraska Civil Procedure § 8:16 (2008) (applicability
of claim preclusion can be raised in motion for summary judgment, and
evidence should be offered to establish defense).
33
In re Adoption of Kenten H., supra note 6.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
IN RE INTEREST OF NOAH B. ET AL.
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but it made a tactical decision not to call her.” It is not clear
from the record what the court relied upon in making these
findings. It is clear from our review of the record, however,
that the court could not have found the parties were aware of
the specific sexual abuse allegations the State sought to raise
in the supplemental petition without looking at matters outside
the pleadings and prior court records.
On the record before us, we conclude the juvenile court
erred by not converting the motions to dismiss into motions
for summary judgment and allowing both parties an opportu-
nity to produce evidence supporting their arguments. We do
not comment on whether the applicability of claim and issue
preclusion could be determined under a summary judgment
standard, but hold only that it was error here to consider mat-
ters beyond the pleading and matters of public record when
ruling on the motion to dismiss. We therefore vacate the order
of dismissal and remand the matter for further proceedings
consistent with this opinion.
Claim Preclusion in
Child Welfare Cases
[21] An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings.34 Because the
issues raised in this appeal regarding the applicability of claim
preclusion are likely to recur on remand, we take this oppor-
tunity to more fully explain how that doctrine applies in abuse
and neglect cases such as this.
[22] We have considered claim preclusion in the context of
successive child custody hearings,35 successive commitment
hearings in juvenile delinquency proceedings,36 and successive
parental termination proceedings.37 In all such contexts, we
34
State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).
35
Marez v. Marez, 217 Neb. 615, 350 N.W.2d 531 (1984).
36
In re Interest of Alan L., supra note 23.
37
In re Interest of V.B. and Z.B., supra note 2.
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have cautioned that “‘the doctrine of [claim preclusion] cannot
settle a question of a child’s welfare for all time to come; it
cannot prevent a court at a subsequent time from determining
what is best for the children at that time.’”38 This same caution
applies in the context of successive adjudications in abuse and
neglect cases.
Several other jurisdictions have examined how the doctrine
of claim preclusion should be applied in child welfare cases.39
In People ex rel. L.S.,40 the South Dakota Supreme Court rec-
ognized the doctrine is premised on two maxims: (1) A person
should not be twice vexed for the same cause, and (2) it is for
the public good that there be an end to litigation. It also noted
that claim preclusion seeks to promote judicial efficiency by
preventing repetitive litigation over the same dispute.41 The
South Dakota court reasoned, however, that “it is important
to consider the nature of abuse and neglect proceedings. The
protection of children from continuing abuse and neglect is not
the type of needless litigation contemplated by the doctrine.”42
It thus articulated that “when it comes to protecting children
[claim preclusion] should be cautiously applied.”43 According
to the South Dakota Supreme Court, a “hyper-technical appli-
cation of [claim preclusion] is simply not appropriate” in child
welfare cases.44 This is so, because concern for children’s
38
In re Interest of Alan L., supra note 23, 294 Neb. at 279, 882 N.W.2d at
694. Accord In re Interest of V.B. and Z.B., supra note 2.
39
See, e.g., L.M. v. Shelby County Dept. of Human Res., 86 So. 3d 377 (Ala.
Civ. App. 2011); Kent v. Dept. of Health & Soc. Services, 233 P.3d 597
(Alaska 2010); In re Juvenile Appeal (83-DE), 190 Conn. 310, 460 A.2d
1277 (1983); In re J’America B., 346 Ill. App. 3d 1034, 806 N.E.2d 292,
282 Ill. Dec. 317 (2004); People ex rel. L.S., 721 N.W.2d 83 (S.D. 2006);
State in Interest of J.J.T., 877 P.2d 161 (Utah App. 1994).
40
People ex rel. L.S., supra note 39.
41
Id.
42
Id. at 90.
43
Id.
44
Id. at 92.
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­ elfare “demands that we place greater emphasis on their
w
protection than on a judicial policy against repeat litigation.
To hold otherwise is to turn our legal process for protecting
abused and neglected children into a hollow ritual.”45
Other courts have expressed similar caution about mechan-
ically applying claim preclusion in child welfare cases.
According to the Connecticut Supreme Court,
[t]he judicial doctrines of [claim preclusion and issue
preclusion] are based on the public policy that a party
should not be able to relitigate a matter which it already
has had an opportunity to litigate. . . . Stability in judg-
ments grants to parties and others the certainty in the
management of their affairs which results when a con-
troversy is finally laid to rest. The doctrines of preclu-
sion, however, should be flexible and must give way
when their mechanical application would frustrate other
social policies based on values equally or more impor-
tant than the convenience afforded by finality in legal
controversies.46
The Utah Court of Appeals has also expressed reluctance to
apply claim preclusion in child welfare cases, stating:
A . . . fundamental question . . . is whether the judi-
cial doctrine of [claim preclusion] has any application in
proceedings involving the welfare of children. Mindful of
the unique nature of child custody and related proceed-
ings, we share the concerns expressed by the courts which
have recognized that a hyper-technical application of
[claim preclusion] is improper in adjudications where the
welfare of children is at stake. Considerations regarding a
child’s welfare are rarely, if ever, static. . . .
. . . In one sense, each day a child is left in an unsafe
or unhealthy environment represents a “new” basis for
45
Id.
46
In re Juvenile Appeal (83-DE), supra note 39, 190 Conn. at 318, 460 A.2d
at 1282.
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judicial concern, and it is this continued threat to a
child’s welfare that merits the court’s continuing juris-
diction and periodic review. The best interests of a child
usually cannot be determined from a single incident, or
even a series of incidents considered in isolation. Rather,
to effectively determine the best interests of a child, a
court must be free from the imposition of artificial con-
straints that serve merely to advance the cause of judi-
cial economy.47
We find the concerns expressed by these courts to be com-
pelling. And we note that Nebraska appellate courts have also
limited the application of claim and issue preclusion in child
welfare cases.
In In re Interest of V.B. and Z.B.,48 the State attempted
to terminate a couple’s parental rights. After conducting an
evidentiary hearing, the court found there was not sufficient
evidence to terminate. About 1 year later, the State filed
a supplemental petition and again sought to terminate the
couple’s parental rights. The couple argued the doctrine of
claim preclusion barred the court from considering any evi-
dence in support of the second petition that was adduced at
the hearing on the first petition for termination. We noted that
we had addressed a similar issue in a child custody case, and
there reasoned:
“A custodial order is conclusive as to all matters prior
to its promulgation. But the doctrine of [claim preclu-
sion] cannot settle a question of a child’s welfare for all
time to come; it cannot prevent a court at a subsequent
time from determining what is best for the children at
that time. The usual way of expressing this rule is to say
that ‘circumstances have changed’ when the order is no
­longer in the children’s interest.”49
47
State in Interest of J.J.T., supra note 39, 877 P.2d at 163-64.
48
In re Interest of V.B. and Z.B., supra note 2.
49
Id. at 372, 370 N.W.2d at 121, quoting Marez v. Marez, supra note 35.
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In In re Interest of V.B. and Z.B., we found this rationale
applied to parental termination cases as well. We held that
“[w]hen a second termination proceeding is not itself barred,
the proof is not limited by [claim preclusion or issue preclu-
sion] principles to facts or evidence which was not considered
in, or which came into being after, the first proceeding.”50
We explained that in juvenile proceedings claim preclusion
prevented a party in a second proceeding from relying solely
on evidence it knew of at the time of the prior proceeding,
but that it was proper to use the prior evidence in a second
proceeding in conjunction with new evidence.51 We recently
held this same principle applies when the State files suc-
cessive motions to change a juvenile’s disposition in delin-
quency proceedings.52
The Nebraska Court of Appeals has also limited the appli-
cation of claim preclusion in the context of a juvenile depen-
dency proceeding that involved a successive motion to termi-
nate parental rights.53 In In re Interest of Marcus W. et al.,54 the
State unsuccessfully sought to terminate a mother’s parental
rights based on allegations that she substantially and continu-
ously or repeatedly neglected her children and refused to pro-
vide them necessary care. Later, the State sought to terminate
the mother’s parental rights based on an allegation that she had
a mental illness or deficiency that was expected to continue
for a prolonged period of time. In finding the second action
was not barred by the doctrine of claim preclusion, the court
reasoned that even though evidence of the mother’s mental
capacity could have been presented in the first termination
proceeding, the second termination petition alleged different
operative facts, and thus, different proof was required. The
50
Id. at 372, 370 N.W.2d at 122.
51
Id.
52
See In re Interest of Alan L., supra note 23.
53
See In re Interest of Marcus W. et al., supra note 3.
54
Id.
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court reasoned that because different grounds for termination
were asserted in the second motion, claim preclusion could not
bar the successive proceeding.
[23] These cases illustrate that in child welfare cases,
Nebraska appellate courts have not strictly applied claim pre-
clusion. Instead, both this court and the Court of Appeals
have implicitly recognized that the policies of finality and
judicial efficiency advanced by the doctrine of claim preclu-
sion must, when necessary, give way when strict application
of the doctrine would frustrate the central goal of protecting
the welfare of children. Supplemental petitions seeking adju-
dication and disposition on additional grounds present such a
circumstance.
[24,25] We now expressly hold that the doctrine of claim
preclusion should not be strictly applied in abuse and neglect
cases when doing so would fail to protect children from con-
tinuing abuse or neglect. The best interests of Nebraska’s
children cannot be protected by a technical application of
claim preclusion that bars the State from filing a supplemental
petition seeking to adjudicate continuing allegations of abuse
and neglect, simply because the State knew about such alle-
gations previously and did not initially seek adjudication on
that basis.
[26-28] In so holding, we caution that the State does not
have unfettered authority to adjudicate abuse and neglect alle-
gations in a piecemeal fashion, free from the constraints of
claim preclusion. Claim preclusion applies in abuse and neglect
cases, but when a supplemental petition seeks adjudication on
grounds not alleged in a prior adjudication, claim preclusion
will not limit the proof to only facts or evidence that was not
considered in, or which came into being after, the prior adju-
dication proceeding.55 Rather, the applicability of claim preclu-
sion will turn on the nature of the proof being offered. If the
State relies solely on evidence known at the time of the prior
55
See, generally, In re Interest of V.B. and Z.B., supra note 2.
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adjudication, the doctrine of claim preclusion will apply and
bar the State from proceeding.56 If, however, the State relies
on evidence from the time period after the prior adjudica-
tion to prove the allegations of the supplemental petition, the
doctrine of claim preclusion will not bar the proof, even if the
new evidence is used in conjunction with evidence known at
the time of the prior adjudication.57 Simply put, the welfare of
Nebraska’s children demands that we place greater emphasis
on protecting them from continuing abuse and neglect than
on strict application of a judicial policy designed to reduce
repeat litigation.
This modified application of claim preclusion is consistent
with how we have applied the doctrine in successive child
custody hearings,58 successive commitment hearings in juvenile
delinquency proceedings,59 and successive parental termina-
tion proceedings.60 And modifying application of the doctrine
in this fashion is appropriate abuse and neglect cases, because
“‘the doctrine of [claim preclusion] cannot settle a question of
a child’s welfare for all time to come; it cannot prevent a court
at a subsequent time from determining what is best for the chil-
dren at that time.’”61
CONCLUSION
For the foregoing reasons, we vacate the order of dismissal
and remand the matter for further proceedings on the supple-
mental petition.
Vacated and remanded for
further proceedings.
56
Id.
57
Id.
58
Marez v. Marez, supra note 35.
59
In re Interest of Alan L., supra note 23.
60
In re Interest of V.B. and Z.B., supra note 2.
61
In re Interest of Alan L., supra note 23, 294 Neb. at 279, 882 N.W.2d at
694. Accord In re Interest of V.B. and Z.B., supra note 2.