In the Matter of the Children of: Shannon Barrington and James Barrington.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-13

In the Matter of the Children of:

Shannon Barrington

and

James Barrington.

Filed September 2, 2003

Affirmed

Lansing, Judge

Olmsted County District Court

File No. J20251076

Frederick S. Suhler Jr., Suite 210, 1530 Southwest Greenview Drive, Rochester, MN  55902 (for appellant James Barrington)

Raymond F. Schmitz, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, Government Center, 151 4th Street Southeast, Rochester, MN  55904 (for respondent Olmsted County)

Kimball G. Orwoll, Suite 11, 400 South Broadway, Rochester, MN 55904 (for respondent guardian ad litem)

Jacob C. Allen, Suite 204, 400 South Broadway, Rochester, MN  55904 (for respondent Shannon Barrington)

            Considered and decided by Lansing, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            On appeal from a district court order finding his three children in need of protection or services, James Barrington argues that the district court erred in concluding he was collaterally estopped from litigating whether he had sexually abused one of his stepchildren.  Because Barrington was a party to the earlier preceding in which his abuse of the stepchild was litigated, and because he had a full and fair opportunity to litigate the allegation of abuse, we affirm.

F A C T S

            Shannon Barrington and appellant James Barrington (Barrington) are the parents of three children whose welfare is the subject of this action.  Shannon Barrington is also the mother of four other children, three of whom have at various times lived with the Barringtons.

In 1998 Hennepin County child-protection authorities petitioned the district court for an order determining one of Shannon Barrington's daughters, S.L.M., to be a child in need of protection or services (CHIPS).  Both Barrington and Shannon Barrington were personally served with the petition and both failed to make an appearance.  The district court granted the petition on several grounds, including its finding that S.L.M. had been physically and sexually abused by Barrington.  In a subsequent permanency proceeding, the Hennepin County district court transferred custody of S.L.M. to Barrington's sister.

            In late 2001 the Barrington family relocated to Olmsted County and shortly thereafter local child-protection authorities began receiving reports that raised questions about the welfare of the Barringtons' children.  After one of Shannon Barrington's children, C.C.M., reported having been sexually abused by Barrington, county authorities filed a petition alleging that the Barringtons' three children were in need of protection or services.  The county alleged six separate statutory grounds in support of its petition, including an allegation that the children would reside with a perpetrator of domestic child abuse.  The county also sought and received an order placing the children in emergency protective care pending the outcome of the CHIPS proceedings.

            Before the contested hearing on the Olmsted County CHIPS petition, the county requested that the district court give collateral estoppel effect to the two Hennepin County district court orders relating to S.L.M.  The district court granted the motion over Barrington's objection and ordered that Barrington would be barred in this CHIPS petition from litigating the issue of whether he had perpetrated acts of domestic child abuse.

            At the contested hearing Olmsted County called one witness, a child protection worker, in support of its petition.  She testified that the Barrington children were living with Barrington when the petition was filed and that they would be living with him if they were returned to the family home. 

            Barrington testified on his own behalf.  The court sustained objections to several questions relating to the Hennepin County proceedings, and Barrington's attorney asked him whether his children have lived or would live with a perpetrator of domestic child abuse.  Barrington said, "No, sir."  His attorney called no further witnesses.

            Following the hearing the district court granted the CHIPS petition, based in part on a finding that the three Barrington children have resided or would reside with a perpetrator of child abuse.  This appeal followed.

D E C I S I O N

Barrington argues that the district court's CHIPS determination must be reversed because the Olmsted County district court erred as a matter of law in giving the findings of the Hennepin County district court preclusive effect.  Collateral estoppel "precludes the relitigation of a right, question, or fact distinctly put in issue and directly determined in a prior adjudication."  Coughlin v. Radosevich, 372 N.W.2d 817, 819 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985).  Collateral estoppel is appropriate when (1) the issue to be litigated is identical to one in a prior adjudication; (2) the prior adjudication resulted in a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.  Cook v. Connolly, 366 N.W.2d 287, 290 n.2 (Minn. 1985).  If these requirements are satisfied, the decision to apply the doctrine lies within the district court's discretion.  Regents of the Univ. of Minn. v. Med. Inc., 382 N.W.2d 201, 207 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).  

Barrington contends that he should have been permitted to relitigate the issue of his abuse of S.L.M. because he was not a party or in privity with a party to the Hennepin County proceeding, and because he did not have a full and fair opportunity to litigate the issue in the earlier proceeding.

Barrington's status as a party

In the absence of voluntary submission to a court's jurisdiction, "to become a party a person must be served with process, or its equivalent, issuing from a court with a valid jurisdictional nexus to the action."  Restatement (Second) of Judgments § 34 cmt. a (1982).  Barrington does not deny he was served with process in the Hennepin County action, and he does not challenge the Hennepin County district court's jurisdiction.  Instead he argues that he was not a party to the Hennepin County CHIPS proceeding because he is not the biological parent of S.L.M., because he did not possess or exercise any custodial rights over S.L.M., and because the CHIPS petition and the order identify only Shannon Barrington as the "respondent."

The district court's power to make a stepparent a party to a proceeding relating to the welfare of his stepchild was addressed in In re Welfare of G.S., 352 N.W.2d 511, 512 (Minn. App. 1984).  In that case a stepfather challenged a contempt order issued after he failed to complete treatment programs prescribed in a neglect proceeding, arguing that he had not been a party to the proceeding.  This court disagreed, observing that a stepfather is subject to the powers of the juvenile court if he provides care and support for the child.  Id. (citing Minn. Stat. § 260.135 (1982) (stating that the court shall issue a summons requiring appearance by "the person who has custody or control of the child"); Minn. Stat. § 260.015, subd. 14 (1982) (defining "custodian" as "any person * * * who is in fact providing care and support for a minor")).  These provisions were in effect when the Hennepin County CHIPS petition was filed and, as recodified, remain current law.  See Minn. Stat. §  260C.151, subd. 1 (2002); Minn. Stat. § 260C.007, subd. 10 (2002).

            Barrington's argument that he did not possess or exercise "custodial rights" over S.L.M. is inconsistent with the Hennepin County district court's findings.  The court specifically found that Barrington had performed the parental function of disciplining S.L.M. and that he had referred to himself when speaking to S.L.M. as "your dad." Barrington did not challenge those findings, and they provide sufficient basis for concluding that he was S.L.M.'s custodian.

            Finally, Barrington's contention that he should not be viewed as a party to the original CHIPS proceedings because only Shannon Barrington was identified as "respondent" in the order is unpersuasive in light of the full content of the order.  The order specifically finds that Barrington was personally served, that he failed to appear, and that he was accordingly in default, and it bars him from visiting S.L.M. without a court order.  Additionally, a case plan formulated on the basis of the order specified that Barrington was to participate in various assessments and counseling programs.  For these reasons we conclude that the district court correctly determined Barrington was a party to the Hennepin County CHIPS proceeding.

Barrington's opportunity to litigate the allegation of abuse

The question of whether a party had a full and fair opportunity to litigate a matter generally focuses on "whether there were significant procedural limitations in the prior proceeding, whether the party had the incentive to litigate fully the issue, or whether effective litigation was limited by the nature or relationship of the parties."  State v. Joseph, 636 N.W.2d 322, 328 (Minn. 2001) (quoting Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1521 (10th Cir. 1990)(other citation omitted)).  Another factor in determining the propriety of collateral estoppel is whether it was foreseeable during the initial litigation that the issue would arise in the context of a subsequent action.  See Restatement (Second) of Judgments § 28(5)(b) (1982).

Barrington makes no claim that he was prevented from litigating the abuse issue by procedural rules or by virtue of his relationship to the other parties.  But Barrington does contend that he had little incentive to appear in the Hennepin County CHIPS proceeding, both because it dealt with a stepchild who was not living with the family at the time of the proceedings and because the petition was based on allegations beyond his purported abuse of S.L.M.issues unrelated to him and his conduct, and over which he had no control.

We reject Barrington's argument because the facts establish that Barrington had substantial incentive to litigate the abuse issue in the Hennepin County proceeding.  First, the issue of S.L.M.'s abuse related to Barrington's own conduct.  The question was not merely whether S.L.M. had been abused, but whether she had been sexually and physically abused by Barrington.  The court's order on the CHIPS petition indicates that these allegations were included in the petition, which was served on Barrington.  The seriousness of these allegations alone provided ample incentive to appear.  Second, although the Hennepin County proceeding involved Barrington's stepchild rather than his own children, a determination that Barrington abused S.L.M. would have provided grounds for adjudicating his own children in need of protection or services, as children residing with a perpetrator of domestic child abuse.  See Minn. Stat. § 260.015, subd. 2a(2)(iii) (1998) (now recodified as Minn. Stat. § 260C.007, subd. 6(2)(iii) (2002)).  It was accordingly foreseeable during the Hennepin County proceeding that Barrington's alleged abuse of S.L.M. would arise again in an subsequent action.

            Because the district court correctly determined that Barrington was a party to the Hennepin County proceeding, and because we believe he had a full and fair opportunity to litigate the allegation of abuse that was decided in that proceeding, we conclude the district court did not abuse its discretion in precluding Barrington from relitigating, in the Olmsted County proceedings, the issue of whether he physically and sexually abused S.L.M.

            Affirmed.