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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kent V. v. State, Dept. of Health & Social Services, Office of Children's Services (6/4/2010) sp-6480

Kent V. v. State, Dept. of Health & Social Services, Office of Children's Services (6/4/2010) sp-6480, 233 P3d 597

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Kent V., )
) Supreme Court No. S- 13578
) Superior Court No. 3PA-06- 00010 CN
v. )
) O P I N I O N
) No. 6480 June 4, 2010
          Appeal  from the Superior Court of the  State
          of  Alaska, Third Judicial District,  Palmer,
          Kari Kristiansen and Vanessa White, Judges.

          Appearances:  John C. Pharr, Law  Offices  of
          John  C.  Pharr,  Anchorage,  for  Appellant.
          Michael   G.  Hotchkin,  Assistant   Attorney
          General,  Anchorage, and Daniel S.  Sullivan,
          Attorney   General,  Juneau,  for   Appellee.
          Dianne  Olsen,  Law Office of  Dianne  Olsen,
          Anchorage, for Guardian Ad Litem.

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, Christen, and Stowers, Justices.

          CHRISTEN, Justice.

          Kent  and  Naomi are the biological parents of  Kenny,1
who  was born in November 2002.  In September 2007 the Office  of
Childrens Services (OCS) filed a petition to terminate Kents  and
Naomis  parental rights.  The petition was denied  in  July  2008
following a bench trial because the superior court did  not  find
beyond  a  reasonable doubt that placement with  Naomi  would  be
harmful  to  Kenny.   A  second petition to terminate  Kents  and
Naomis  parental rights was filed in October 2008.  Kent filed  a
motion to dismiss the second petition, arguing that it was barred
by  the doctrine of res judicata.  The superior court denied  the
motion to dismiss and the case proceeded to trial.  At the second
trial,  OCS relied upon psychological examinations of  Kenny  and
Naomi  that  were  conducted  after  the  first  trial  and  also
introduced evidence from the first trial.  The court granted  the
second  petition  and  terminated the  parental  rights  of  both
parents.   On  appeal, Kent renews his argument that  the  second
petition was barred by the doctrine of res judicata.  Because the
trial  court  appropriately considered  the  entirety  of  Kennys
history  and  because the second petition presented new  material
facts, we affirm the trial courts termination of parental rights.
          Kent is the biological father of Kenny, who was born in
November  2002  and  is an Indian child under  the  Indian  Child
Welfare Act (ICWA).2  Kent has a history of criminal conduct  and
alcohol abuse and he was incarcerated when Kenny was born. Kennys
mother, Naomi, has a history of poly-substance abuse.  Naomi  was
participating in a residential substance abuse program when Kenny
was born and one of her older children was in the States custody.
Because  of  her circumstances, OCS filed a petition for  custody
when Kenny was just days old.  The court granted OCS supervision,
Kenny  remained placed with Naomi, and the petition was dismissed
by OCS in December 2004.
          In February 2006, Kent made a report of concern to OCS.
He  alleged  that it was dangerous for Kenny to live  with  Naomi
because  Naomis husband was abusive and Naomi was  continuing  to
use  drugs.   Following an investigation, OCS filed  a  new  CINA
petition in April 2006 and again took emergency custody of Kenny.
At  the  time,  Kent was working on the North Slope  and  had  no
established relationship with Kenny.  Kenny was placed  with  his
current  foster  family in June 2006.  He  has  lived  with  them
continuously since that time.
          After resuming custody, OCS began working with Kent  to
help  him  establish a relationship with Kenny.  The goal  was  a
full   transition  to  Kents  care.   The  process  started  with
telephone  conversations and progressed to daytime  visits,  then
overnight visits, and, eventually, weekend visits.  In May  2007,
the  final  weekend  before Kenny was to transition  to  a  trial
living  situation with Kent, OCS received a substantiated  report
that Kent had resumed drinking and had slapped Kenny.  A few days
later,  Kent was arrested for his fifth DUI, and the plan  for  a
trial placement in Kents home was abandoned.
          OCS  petitioned to terminate Kents and Naomis  parental
          rights in September 2007 and a trial was held in April and June
2008.  The superior court focused its findings on Naomi; Kent was
not  available to parent at the time because he was incarcerated.
The  superior court ruled that OCS proved by clear and convincing
evidence  that Kenny was a child in need of aid.  But emphasizing
the high burden of proof in ICWA cases  proof beyond a reasonable
doubt  including  testimony of a qualified expert  witness3   the
court did not terminate either partys parental rights because  it
did  not  find  that  Kenny  would suffer  serious  emotional  or
physical  damage  if Naomis parental rights were not  terminated.
The court noted that OCSs expert witnesses really had nothing  to
say about whether or not putting [Kenny] with [Naomi] . . . would
result  in  serious harm to [Kenny].  The court also stated  that
under the circumstances, [Naomi] is being so closely monitored by
the  program  that  shes  in, theres  nothing  there  to  suggest
placement  would be harmful.  The only statement the  court  made
about  Kent  was that he is currently incarcerated pending  trial
and unavailable to meet [Kennys] needs.
          Immediately after the courts oral ruling, OCSs attorney
asked  the court if it would allow OCS to present another witness
who OCS believed could meet the ICWA standard.  Counsel for Naomi
and  Kent  both objected, arguing that OCS had their  opportunity
and  they lost it.  The  court responded that OCS would  have  to
file a motion to reopen the evidence if it wants to have a second
bite  at  the apple so that the parents would have an opportunity
to  respond.  OCS did not file such a motion, and no  appeal  was
taken from the superior courts decision.
          A little over a month after the court denied OCSs first
petition,   Kenny  participated  in  a  series  of  psychological
evaluations with Dr. Melinda Glass.  Dr. Glass authored a  report
that concluded, among other things, that:
          Underneath [Kennys] apparent outward  ability
          to   function  is  likely  extreme  emotional
          chaos.  [Kenny] cannot afford another trauma,
          another  failed placement, or any  disruption
          in his life.  Another disruption would likely
          be  very  damaging  to his  ability  to  form
          trusting     relationships    and    severely
          compromise his ability to develop normally.
          . . . .
          [Kenny]   has   been   through   trauma   and
          instability that has impacted his  resiliency
          and  ability  to trust.  Another  move  would
          cause  a  significant  risk  to  his  present
          stability.  He is fragile and vulnerable, and
          in  order to have a chance to function  as  a
          normal  child he needs stability, appropriate
          parenting, and confidence in his environment.

          About  two months after the first petition was  denied,
Dr.  Russell Cherry conducted a neuropsychological evaluation  of
Naomi.  He concluded that given her history of noncompliance with
treatment plans and probation requirements:
          the onus of responsibility should be upon the
          patient   to  prove  that  she  can  maintain
          sobriety,  maintain employment, abstain  from
          abusive  relationships with criminals/felons,
          and    not    violate   other    probationary
          requirements  for a period  of  12-24  months
          before  she  could  even  be  considered  for
          duties as a primary caregiver of her child.

He  also  reported  that  Naomi stated that  she  has  no  regret
regarding  her past history, which supported his conclusion  that
[g]iven  the  apparent fact that the patient does not  appear  to
take  responsibility for her past actions, she appears to  be  at
elevated risk for repeating them.
          On  October  2,  2008, OCS filed a second  petition  to
terminate the parental rights of Kent and Naomi.  In addition  to
the  prior  allegations, the second petition  included  extensive
references  to  the  post-trial  psychological  examinations  and
          Naomi  was  arrested for violating  conditions  of  her
electronic  monitoring  program,  including  the  consumption  of
alcohol,  on October 24, 2008.  As a result, she was returned  to
prison with a scheduled release date of February 1, 2011.
          On October 28, 2008, Kent filed a motion to dismiss the
second  petition  based on the doctrine  of  res  judicata.   OCS
opposed  the motion, as did the guardian ad litem (GAL) appointed
for  Kenny.   On November 3, 2008, the court held  a  hearing  to
consider  a petition to extend OCSs custody of Kenny.  The  court
concluded  that Kent and Naomi had not made substantial  progress
to  remedy [their] conduct.  The GAL submitted a report outlining
Naomis  relapse, subsequent incarceration, and continuing contact
with  her abusive husband.  The GAL also noted that Kent had  not
demonstrated  any willingness for reunifying with his  son  since
his  failed  trial  home  placement in  May  2007.   Following  a
permanency  hearing  held  December  4,  2008,  the  court  again
concluded  that Kent and Naomi had not made substantial  progress
to  remedy  [their]  conduct.  The same day, the  superior  court
heard oral argument on Kents motion to dismiss.  The court denied
the motion, finding that the second petition raised new facts and
that  Kents  res  judicata arguments were not persuasive  in  the
context of a CINA case.
          A  second trial was held in March 2009.  Kent was in  a
residential  substance abuse program at the time  of  the  second
trial  and  had  not  seen Kenny since July 2008.  Kent  did  not
present any witnesses or evidence and he acknowledged he was  not
in  a  position to have Kenny placed with him.  But  Kents  clear
position  at trial was that he did not want to lose his  parental
          In  its  May 2009 written findings of fact,  the  court
repeated  many of its findings from the first termination  trial,
including  that  Kent remained unavailable to  parent,  based  on
incarceration, neglect, [and] drug and alcohol use  .  .  .  that
substantially  impair [his] ability to parent.  The  court  again
found  that Kent had not sufficiently shown any long-term success
living  in  an  unstructured environment  to  warrant  return  of
[Kenny],  and it observed that Kent was still awaiting trial  and
possible  sentencing  on his fifth DUI charge,  which  carried  a
minimum of three years incarceration.  The court also found  that
Kent  has  not indicated any willingness to reunify with  [Kenny]
and  instead has offered to relinquish [his parental  rights]  if
[Kents]  aunt and uncle . . . adopt [Kenny].  Citing to testimony
presented  at  the second trial, including Dr. Glasss  testimony,
the  superior court concluded that [t]here is evidence  beyond  a
reasonable  doubt  . . . that return of [Kenny]  to  [Naomis]  or
[Kents]  custody is likely to result in serious emotional  damage
to the child.
          Kent  appeals.  He argues the superior court  erred  by
not  concluding  that  the  second petition  was  barred  by  res
          Application  of  the doctrine of res judicata  presents
questions of law which we review de novo.4
     A.   OCSs Second Petition To Terminate Kents Parental Rights
          Is Not Barred by Res Judicata.
          Kent  argues that we should reverse the superior courts
decision terminating his parental rights on the grounds that OCSs
second  petition  is barred by res judicata.5  But  he  makes  no
substantive challenge to the courts conclusion that OCS  met  its
burden of proving the elements necessary to sustain its petition.6
          Under the doctrine of res judicata a final judgment  in
a prior action bars a subsequent action if the prior judgment was
(1) a final judgment on the merits, (2) from a court of competent
jurisdiction, [and] (3) in a dispute between the same parties . .
.  about  the  same cause of action.7  The doctrine is  based  on
policies of judicial efficiency8 and has as its primary objective
.  .  .  judicial finality.9  We have noted that [t]o the  extent
that a litigant is allowed to try his case in multiple tribunals,
the  court  is inviting forum shopping and nuisance litigation.10
But the policy of finality underlying res judicata . . . must  be
tempered  by  our paramount concern that a party be afforded  his
day  in court.11  Furthermore, res judicata does not act as a bar
when the conduct giving rise to the second suit occurs after  the
conclusion of the first suit.12
          1.    Other jurisdictions have expressed concern  about
applying            res judicata in child welfare cases.

          It  is a question of first impression in Alaska whether
the doctrine of res judicata applies in the context of a petition
to  terminate parental rights.13  As OCS and the GAL note, courts
in  other  jurisdictions  have questioned  whether  res  judicata
should  be  applied in cases where the state seeks  to  terminate
parental  rights, reasoning that the circumstances  in  a  childs
life  are ever-changing and that the courts focus must be on  the
childs  welfare.   For  example, the Utah Court  of  Appeals  has
stated  that  to  effectively determine the best interests  of  a
child,  a  court must be free from the imposition  of  artificial
constraints  that serve merely to advance the cause  of  judicial
economy.14   The  Utah court continued: determining  whether  the
          circumstances of child abuse or abandonment justify terminating
parental   rights   is  not  the  type  of  needless   litigation
contemplated by the doctrine of res judicata.15  The Supreme Court
of  South  Dakota  has  stated that when it comes  to  protecting
children res judicata should be cautiously applied.16
          We  have  stated that in a termination trial, the  best
interests of the child, not those of the parents, are paramount.17
And  we  agree  with  other jurisdictions that  the  prospect  of
applying  the  doctrine of res judicata to  CINA  cases  presents
troubling  questions.18  But we do not decide  here  whether  res
judicata  may  ever be applied to child welfare cases  in  Alaska
because,  in this case, Kent did not meet his burden  of  showing
that the elements of res judicata are satisfied.
          2.   OCSs  second petition to terminate Kents  parental
               rights  is  not barred by res judicata because  it
               raised new material facts.
          The superior court agreed with Kent that OCS should not
be  permitted  to  just file a termination petition  without  new
facts,  but  it denied Kents motion to dismiss because  it  found
that we do have new facts here.  The courts conclusion that there
were  new facts was based on: (1) psychological evaluations  that
had  not  been conducted at the time of the first trial; (2)  new
facts  set  forth in the GALs November 25, 2008 report  including
Naomis  relapse and re-incarceration; and (3) the fact that  Kent
had  not demonstrated any willingness for reunifying with his son
since his failed trial home transition in May 2007.
          Kent  concedes that res judicata would not bar a second
petition  for  termination if there are material new  facts  that
arise  in the interim.19  (Emphasis in original.)  But he  argues
that nothing new occurred as respects him and [t]here was not one
point  regarding the father that the state could not have  raised
in  the  first  trial.  He argues the psychological  examinations
conducted   after  the  first  decision  relied  on   facts   and
circumstances  in  existence at the first  trial,  and  therefore
their reports were not new information or a changed circumstance.
He  also  argues that the new facts regarding Naomis relapse  are
irrelevant points with respect to whether his own parental rights
should  be  terminated.  OCS and the GAL counter that  the  third
element  of  res  judicata is not met here because  new  material
facts  did develop between the time the first petition was denied
and the time the second petition was granted.
          We  do  not agree with Kent that no new material  facts
arose after the first petition that could serve as the basis  for
a  second  petition.   In the second trial,  the  superior  court
considered  Dr. Glasss psychological examination of Kenny,  which
had  not  been  performed at the time of the  first  trial.   The
report  makes specific reference to, and relies upon,  facts  and
developments  that  occurred  after the  first  trial,  including
Kennys evolving needs.  Dr. Glass emphasized that Kenny was about
to enter kindergarten and opined that [t]he primary focus at this
moment  needs  to  be  upon  preparing  [Kenny]  for  the   major
developmental change which will occur when he enters school.  She
emphasized that it is tremendously important for [Kenny] to  have
a  structured, stable home that is supportive of his  ability  to
          start school.  And she expressed concern that instability would
likely   compromise   his   ability  to   appropriately   develop
relationships   at   school  and  adjust  to   the   demands   of
Kindergarten.   Dr.  Glass also recognized that  Kenny  is  well-
bonded  to  his foster family, that the foster family  wishes  to
adopt  him,  and that with the passage of time his  bond  to  his
foster  family  grew  stronger while his  relationship  with  his
biological parents became more attenuated.  She found that Kennys
living  arrangement with his foster family represents  the  first
stability  he has had in his life and expressed her opinion  that
to  change  this would be damaging to his emotional  development,
and  ability to trust and form healthy relationships.  Dr.  Glass
concluded that Kenny needs stability right now, and that [h]e  is
in  a  home  where the potential for him to be able to  trust  is
huge, both in his foster parents and his siblings.  When asked if
removing  Kenny from his nearly three-year placement would  cause
him  serious emotional damage, Dr. Glass testified that it would.
She  also  expressed concern over whether Kenny could  afford  to
wait  until  his mother was released from prison.  She  testified
that,  given  his  emotional state, such a delay  would  be  very
unhealthy for him and it would likely cause significant harm  for
          Dr.  Glass also offered opinions relating to Kent  that
were  not available at the first trial.  Based on her examination
of  Kenny and Kennys failed placement with Kent, she opined, [i]t
is  questionable whether his biological father should continue to
be  involved at all with [Kenny].  Dr. Glass also testified  that
Kenny told her that he did not trust his dad.
          Kents  continued  course  of conduct   his  failure  to
improve  as  a  parent and his continued inability to  provide  a
stable environment for Kenny  serves as another independent basis
supporting the second petition and the superior courts  decision.
At  the  conclusion of the first trial, the superior court  found
that  Kent was unavailable to parent [Kenny] at the present  time
and  noted  that Kent was given the opportunity to  reunify  with
[Kenny]  but  that  this attempted placement failed.   The  court
found  that Kent had not sufficiently shown any long-term success
living  in  an  unstructured environment  to  warrant  return  of
[Kenny],  and concluded that he remain[s] unavailable to  parent,
based  on  incarceration, neglect, drug and alcohol use  and  the
fact  that  [w]hile  incarcerated [he] has  [not]  made  adequate
arrangements for the child.
          Kent presented no evidence at the second trial to rebut
the superior courts earlier findings, leading the court to remark
that it has not seen anything from [Kent] other than the fact hes
still  in  treatment, . . . so were still in a spot where  [Kent]
has  not completed his case plan.  The court found that Kent  was
still  not available at this time to parent, and it did not  have
an  impression[] of when hell be available to parent.  The  court
concluded  that [Kenny] cant wait.  Kent fails to recognize  that
the  passage  of time alone can have significant consequences  if
the  developmental needs of a child as young  as  Kenny  are  not
being met.
          Kents continuing unavailability and inability to parent
Kenny  is new evidence that supports OCSs second petition.20   To
decide  differently would place children at  risk  of  living  in
perpetual  limbo.  At the second trial, the court had  even  less
reason to expect that the parties circumstances might allow  them
to  parent  Kenny  within a reasonable time.   Both  were  facing
potential  multi-year periods of incarceration before they  could
even  begin  to work towards reunification with Kenny.   And  the
GALs  November  28, 2008 permanency report noted that  Kenny  has
waited  30  months for [Kent] and [Naomi] to address issues  that
put  him at risk and that [b]oth parents have failed [Kenny]  and
failed  in  a  timely manner to demonstrate  that  they  can  put
[Kennys]  needs  first.   We have repeatedly  recognized  that  a
childs  need for permanence and stability should not  be  put  on
hold  indefinitely while the childs parents seek to  rectify  the
circumstances that cause their children to be in need  of  aid.21
Kents  res  judicata argument is premised on his  view  that  the
familys  circumstances had not appreciably changed  between  2008
when  the court denied the first petition and 2009 when the court
granted the second petition.  But he fails to recognize that  the
passage of time  without corresponding progress on his case  plan
provides  support  for the courts decision  that  termination  of
paternal rights is now warranted.
          3.   The   court   properly  considered  new   evidence
               regarding Naomis circumstances.
          Kent   argues   that   Dr.  Cherrys  neuropsychological
evaluation  of  Naomi, her relapse into alcohol  abuse,  and  her
subsequent incarceration did not constitute evidence relevant  to
the  petition to terminate his rights.  We disagree.   Whether  a
court should grant a petition to terminate the parental rights of
one  parent  is not a question that can easily be separated  from
the  question  of whether to terminate the rights  of  the  other
parent.22   If  Naomi  had been able to successfully  remedy  the
conduct that caused Kenny to be in need of aid, it is likely that
there  would  have  been  no need to seek  termination  of  Kents
parental  rights.   As  it  is,  neither  parent  was   able   to
successfully  complete a case plan in a reasonable timeframe,  so
it  is necessary to terminate their parental rights in order  for
Kenny to achieve permanency.
          We  agree  with  the  superior court  that  the  second
petition was supported by new material facts that developed after
the first trial.  We therefore conclude that the third element of
res judicata is not met in this case.23  OCSs second petition  to
terminate Kents parental rights is not barred by res judicata.
          We  AFFIRM  the  superior courts  decision  terminating
Kents parental rights.
     1    This opinion uses pseudonyms for the parties involved.

     2    25 U.S.C.  1903(4).

     3     25  U.S.C.  1912(f) (No termination of parental rights
may   be  ordered  in  such  proceeding  in  the  absence  of   a
determination,  supported by evidence beyond a reasonable  doubt,
including  testimony  of  qualified expert  witnesses,  that  the
continued  custody of the child by the parent or Indian custodian
is  likely  to result in serious emotional or physical damage  to
the child.)

     4     Alderman v. Iditarod Properties, Inc., 104  P.3d  136,
140 (Alaska 2004).

     5     Kent also discusses the related doctrine of collateral
estoppel  in his appellate briefs.  However, because  Kent  based
his  arguments  below  on  res judicata  rather  than  collateral
estoppel,  did  not raise collateral estoppel in  his  points  on
appeal,  and  does  not make clear in his briefs  what  issue  he
believes  should be precluded, we do not address the doctrine  of
collateral  estoppel here.  Hagans, Brown & Gibbs v.  First  Natl
Bank  of Anchorage, 783 P.2d 1164, 1166 n.2 (Alaska 1989) (Issues
not  properly raised . . . at trial are not properly before  this
court on appeal.).

     6     One  of  Kents points on appeal is [t]he  trial  court
erred in terminating [Kents] parental rights, but because he  did
not brief this issue and conceded at oral argument that he is not
challenging the substance of the superior courts conclusions,  we
consider   any   substantive  challenge  waived.   Wasserman   v.
Bartholomew,  38  P.3d  1162,  1171  (Alaska  2002)   (concluding
plaintiff  waived  issue, even though it  was  point  on  appeal,
because it was not briefed).

     7    Plumber v. Univ. of Alaska Anchorage, 936 P.2d 163, 166
(Alaska 1997).

     8     Anchorage Police Dept. Employees Ass'n v. Feichtinger,
994 P.2d 376, 387 (Alaska 1999).

     9     Drickersen  v. Drickersen, 546 P.2d 162,  169  (Alaska
1976)  (noting  that res judicata is founded upon  the  generally
recognized  public  policy  that  there  must  be  some  end   to
litigation  and  that when one appears in court  to  present  his
case,  is fully heard, and the contested issue is decided against
him,  he  may  not later renew the litigation in  another  court)
(citing Heiser v. Woodruff, 327 U.S. 726, 733 (1946)).

     10    Feichtinger, 994 P.2d at 387.

     11     Palfy  v.  First Bank of Valdez, 471  P.2d  379,  384
(Alaska 1970).

     12     Plumber, 936 P.2d at 167 (citing Restatement (Second)
of  Judgments  24 cmt. f (1982)).  Comment (f) of the Restatement
(Second) of Judgments  24 states that [m]aterial operative  facts
occurring  after the decision of an action with  respect  to  the
same  subject  matter may in themselves, or taken in  conjunction
with  the antecedent facts, comprise a transaction which  may  be
made the basis of a second action not precluded by the first.

     13     We rejected a res judicata claim in the context of  a
child  custody proceeding where a fathers allegation of drug  use
by  the mother constituted a substantial change in circumstances,
concluding that the issue of the mothers drug abuse was not being
relitigated.  Fardig v. Fardig, 56 P.3d 9, 12 (Alaska 2002).

     14    In the Interest of J.J.T., 877 P.2d 161, 164 (Utah App.

     15    Id.

     16    People ex rel. L.S., 721 N.W.2d 83, 90 (S.D. 2006).

     17    A.B. v. State, Dept. of Health & Social Servs., 7 P.3d
946,  954 (Alaska 2000) (quoting A.A. v. State, Dept of Family  &
Youth Servs., 982 P.2d 256, 260 (Alaska 1999)).

     18    See In re Pardee, 475 N.W.2d 870, 874 (Mich. App. 1991)
(doctrine of res judicata cannot settle the question of a  childs
welfare  for  all  time); In re Interest of V.B.  and  Z.B.,  370
N.W.2d  119,  121  (Neb. 1985) ([T]he doctrine  of  res  judicata
cannot  settle a question of the childs 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.);  People
In  Interest  of  J.R.,  711  P.2d 701,  703  (Colo.  App.  1985)
(Although the policy of limiting litigation is sound, that policy
should  not be applied so as to deprive the state in its role  as
parens  patriae from seeking a resolution which will  best  serve
the  interests of the children.); In re Juvenile Appeal, 460 A.2d
1277,  1282  (Conn. 1983) (The doctrines of preclusion,  however,
should  be  flexible  and  must give way  when  their  mechanical
application would frustrate other social policies based on values
equally  or  more  important  than the  convenience  afforded  by
finality  in legal controversies.).  But see Slatton v.  Brazoria
County Protective Servs. Unit, 804 S.W.2d 550, 553, 557 (Tx. App.
1991) (noting that [r]es judicata is applicable to an attempt  to
relitigate issues previously tried in a termination case  because
[t]o  hold  otherwise would be to allow the State with  its  vast
resources  to  try  the same issues over and over  again  to  the
disadvantage  of  the parents, but upholding the  termination  of
parental rights on other grounds).

     19     Kent also conceded at oral argument that if there are
new material facts a court should consider the entire record, not
just what occurred subsequent to the initial proceedings.  See In
re  Newman,  619 P.2d 901, 905 (Or. App. 1980) ([W]hen  a  second
termination  proceeding is not itself barred, the  proof  is  not
limited  by  res  judicata or collateral estoppel  principles  to
facts or evidence which was not considered in, or which came into
being after, the first proceeding.).

     20     See  In  re A.S., 752 P.2d 705, 711 (Kan. App.  1988)
(Future  changes that would justify reviewing evidence considered
in  prior  termination proceedings could be triggered by  nothing
more  than  a  continued course of conduct, i.e.,  a  failure  to
change or to improve as a parent.).

     21     See,  e.g., J.H. v. State, Dept. of Health  &  Social
Servs., 30 P.3d 79, 87 (Alaska 2001).

     22    See A.B. v. State, Dept. of Health and Social Servs., 7
P.3d 946, 954-55 (Alaska 2000) (remanding case to trial court  to
consider  whether terminating parental rights of one  parent  but
not the other is in the childs best interests).

     23     Having  decided on these grounds, it is not necessary
for  us  to consider OCSs argument that the first element of  res
judicata is also not met in this case.

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