J-S06029-15

                                  2015 PA Super 118

IN THE INTEREST OF: N.A., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


APPEAL OF: DEPARTMENT OF HUMAN
SERVICES (DHS)

                                                      No. 2440 EDA 2014


                  Appeal from the Order Entered July 24, 2014
              In the Court of Common Pleas of Philadelphia County
                Family Court at No(s): FID#51-FN-004497-2013
                          No. CP-51-DP-0002333-2013


                                          *****

IN THE INTEREST OF: M.A., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


APPEAL OF: DEPARTMENT OF HUMAN
SERVICES (DHS)

                                                      No. 2599 EDA 2014


                  Appeal from the Order Entered July 24, 2014
              In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): FID#51-FN-004497-2013
                          No. CP-51-DP-0002330-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.:                                  FILED MAY 13, 2015

        The Department of Human Services of the City of Philadelphia (“DHS”)

appeals the trial court’s determination that minors M.A. and N.A. did not
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*
    Former Justice specially assigned to the Superior Court.
J-S06029-15


meet the definition of dependent children.      The trial court described the

procedural history of this matter as follows:

            On November 11, 2013, DHS received a General Protective
      Services (“GPS”) Report alleging that a neighbor observed M.A.
      and N.A. at the family’s home without adult supervision. The
      Report further stated that police responded to the home,
      transported M.A. and N.A. to DHS and Mother was contacted to
      retrieve the children. Mother retrieved M.A. and N.A. later that
      day.

            On November 20, 2013, DHS filed Dependency Petitions
      for M.A. and N.A. At the Adjudicatory Hearing on December 4,
      2013 held before this Court, Adjudication was deferred. This
      Court also ordered that IHPS continue and DHS supervise the
      family.

            At the Adjudicatory Hearing on March 5, 2014, held before
      this Court, Adjudication was deferred. This Court ordered DHS
      supervision to stand and N.A. to be referred to the Behavior
      Health System (“BHS”) for Therapeutic Staff Support (“TSS”)
      services. This Court also noted that M.A. was residing [with]
      L.P. (Maternal Grandmother), and N.A. was residing with his
      father, N.T., through family arrangements.

           At the Adjudicatory Hearing on April 9, 2014, held before
      Master William Rice, the Court recommended:

         AND NOW, this 9th day of April 2014, after consideration of
         the motion presented by the petitioner the Court finds that
         clear and convincing evidence does not exist to
         substantiate the allegations set forth in the petition.
         Furthermore it is ORDERED that the child is found not to
         be a Dependent Child pursuant to the Pennsylvania
         Juvenile Act and that the petition for dependency is
         dismissed. Any temporary legal and physical custody by
         the Philadelphia Department of Human Services of the
         aforementioned child shall be discharged.

         Child to remain with Maternal Grandmother until the end of
         2013-2014 school year. Child to be reunified with mother
         at the end of the 2013-2014 school year. Mother’s visits



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       are to continue until reunification occurs.     Petition is
       discharged.

        The April 9, 2014 recommendation was adopted and ordered
     by this Court. DHS did not appeal the April 9, 2014 Order.

        On April 14, 2014, DHS received a GPS Report stating that
     M.A. was sexually abused by her babysitter’s 13 year old son
     approximately two years ago. The sexual abuse allegations were
     not addressed at the Adjudicatory Hearing on April 9, 2014. The
     Report further stated: M.A. was in the care of the babysitter at
     the time of the incident; the sexual abuse occurred on two
     separate occasions; M.A. was eight years old at the time of the
     incident; and M.A. was residing in the legal custody of Mother
     during the time of the incidents. The Report also provided that
     M.A. was afraid to tell anyone about the sexual abuse and was
     receiving services through Philadelphia Children’s Alliance
     (“PCA”). However, DHS did not file an Emergency Petition based
     upon these allegations.

       In May 2014, N.A. and M.A. were not returned to Mother’s
     home pursuant to the April 9, 2014 Court Order, which follows,

       Child to remain with Maternal Grandmother until the end of
       the 2013-2014 school year. Child to be reunified with
       mother at the end of the 2013-2014 school year.

     According to DHS, Mother was working two jobs, and unable to
     identify any resources who could supervise the children during
     work.

           On June 13, 2014, N.A. began residing at Maternal
     Grandmother’s house as well. Both children continued to remain
     in Maternal Grandmother’s care contrary to this Court’s April 9,
     2014 Order directing the children to be reunified with Mother at
     the end of the 2013-2014 academic school year.

          On June 20, 2014, DHS learned from the Wedge Medical
     Center that N.A., while under the care of Maternal Grandmother,
     had not been receiving his weekly therapy and medication
     management since April 30, 2014.

          On June 30, 2014, over two months after the first
     Dependency Petition was dismissed, DHS filed a second
     Dependency Petition attempting to reargue issues previously

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      heard before this Court at the Adjudicatory Hearing on April 9,
      2014.

            On July 24, 2014, an Adjudicatory Hearing was held before
      this Court and this Court found again that no Dependency issues
      were present. Based upon the findings, this Court Ordered both
      children to be reunified with Mother as previously ordered at the
      Adjudicatory Hearing on April 9, 2014 and dismissed the second
      Dependency Petition. This Court also found the testimony of the
      DHS worker not credible. Thereafter, DHS filed a timely Appeal
      on August 25, 2014.

Trial Court Opinion, 10/6/2014 at 3-6 (internal citations omitted).

      On appeal, DHS raises the following issues:

             1. Did the trial court err, as a matter of law, where it
      denied the Philadelphia Department of Human Services’ request
      to present the entirety of its evidence that M.A. and N.A. met the
      definition of dependent children?

            2. Did the trial court err, as a matter of law, in holding that
      the doctrine of res judicata prevented DHS from presenting any
      evidence of events prior to April 9, 2014, to support its claim
      that M.A. and N.A. met the definition of dependent children?

Appellant’s Brief, at 6.

      DHS’ argument is twofold.       First, DHS argues that the court, in a

dependency determination, is mandated to engage in a sweeping inquiry.

Appellant’s Brief, at 15. DHS posits, then, that in applying res judicata, and

limiting the facts considered at the July 24, 2014 dependency determination,




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the trial court erred and did not engage in a thorough inquiry.1 Appellant’s

Brief, at 15-16. We are not persuaded by this argument.

       In evaluating dependency rulings, this Court has held,

       The standard of review which this Court employs in cases of
       dependency is broad. However, the scope of review is limited in
       a fundamental manner by our inability to nullify the fact-finding
       of the lower court. We accord great weight to this function of the
       hearing judge because he is in the position to observe and rule
       upon the credibility of the witnesses and the parties who appear
       before him. Relying upon his unique posture, we will not overrule
       his findings if they are supported by competent evidence. In Re
       R.R., 455 Pa. Super. 1, 686 A.2d 1316, 1317 (1996) (citations
       omitted).

In the Matter of C.R.S., 696 A.2d 840, 843 (Pa. Super. 1997).

       Further, it is well settled that the doctrine of res judicata applies to

prevent litigants from bearing the burden of re-litigating the same issues

with the same parties, and to promote judicial economy. Philip v. Clark,

560 A.2d 777, 780 (Pa. Super. 1989).             For res judicata to apply, the

following elements must be concurrent across both actions: (1) the identity

of the thing sued upon; (2) the identity of the cause of action; (3) the
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1
  Mother claims DHS waived its challenge to the court’s application of res
judicata to the extent that the court based its decision upon actions and
events existing subsequent the court’s prior discharge of DHS’s petition for
delinquency. We do not find waiver here. First, the court made it clear it
was not re-opening the prior delinquency matter and it would base its
decision on the current petition. DHS stated it was raising the prior matter
simply to “provide a history.” N.T. Dependency Hearing, 7/24/14, at 7.
Further, DHS raised the res judicata issue in its Pa.R.A.P. 1925(b) Statement
of Errors Complained of on Appeal. See Pa.R.A.P. 1925(b) Statement,
8/5/14, ¶ 2. Despite the fact that we do not find waiver, we also find the
doctrine inapplicable. See infra.



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identity of persons and parties to the action; and (4) the identity of the

quality or capacity of the parties suing or being sued.          Callery v. Mun.

Auth., 243 A.2d 385, 387 (Pa. 1968).             The dominant inquiry under those

elements, then, is whether the controlling issues have been decided in a

prior action, in which the parties had a full opportunity to assert their rights.

Id.

       We conclude the doctrine of res judicata is not applicable in the instant

matter.2      The    Commonwealth Court of Pennsylvania           has previously

explained,


       Res judicata encompasses two related yet distinct principles:
       technical res judicata and collateral estoppel. Technical res
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2
   We agree with Mother that DHS’ reliance on In the Interest of
DelSignore, 375 A.2d 803 (Pa. Super. 1977), is misplaced. There, a
juvenile defendant faced a delinquency and deprivation hearing in February
of 1975, at which she was adjudicated not delinquent. Thereafter, in
September of 1975, the defendant faced another delinquency hearing. At
the September hearing defendant argued that the court’s prior findings
should estop a delinquency adjudication at the present hearing. Defendant’s
motion to dismiss the petition based on res judicata was denied. On appeal,
this Court affirmed, concluding res judicata did not apply. We stated:
“[T]he present petition and hearing were based on acts committed after the
first adjudication. Therefore, at least two of four factors requisite to the
application of the doctrine of res judicata are lacking: identity of the thing
sued upon, and identity of the cause of action.” DelSignore, 375 A.2d at
808. This Court’s reasoning in DelSignore is premised on the understanding
that at the second hearing the court relied on only the record of events after
the first hearing. We distinguish the instant case, therefore, as, under DHS’
theory, there would be no divide between the body of evidence presented at
the April hearing and the July hearing. As such, the same reasoning, which
determined that the separate hearings in DelSignore could not constitute
the same matter for res judicata purposes, cannot apply in this case.



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        judicata provides that where a final judgment on the merits
        exists, a future lawsuit on the same cause of action is precluded.

J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth. 2002)

(citations omitted).     Considering the procedural posture of this case, we

conclude that neither principle applies.

        Technical res judicata does not apply, as the two causes of action, the

first determination and the second determination, are not the same.          It is

well settled that the proper inquiry in a dependency adjudication follows a

bifurcated analysis: “Is the child at this moment without proper parental

care or control?; and if so, is such care or control immediately available?”

In the Interest of La Rue, 366 A.2d 1271, 1278 (Pa. Super. 1976)

(emphasis added).        Because the element of time is integral to the

dependency adjudication, each petition in this instance necessarily implicates

a different cause of action. Thus, technical res judicata cannot apply.

        Furthermore, collateral estoppel does not apply. The window between

the first and second hearing offers a new body of facts to consider, and, as

such,    changes   the   issues   surrounding   the   dependency   adjudication.

Therefore, the principles of collateral estoppel are not in play. See J.S.,

supra.

        Although the lower court mistakenly invoked the doctrine of res

judicata, its reasoning was sound.     A dependency adjudication requires an

inquiry into the circumstances in which the petition is filed, specifically,

whether proper care or control is available in that moment.        Id.    It was


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proper, therefore, for the lower court to consider only the interim record, as

those facts were controlling as to the issue of dependency. “The fact that a

child lacked proper parental care in the past is not sufficient to show

dependency[.]”      West’s Pennsylvania Family Law Practice and Procedure §

30:5; In re D.A., 801 A.2d 614 (Pa. Super. 2002); see also In Interest

of Hall, 703 A.2d 717 (Pa. Super. 1997) (fact that child born to minor who

herself    is   adjudicated    dependent       insufficient   to    support   finding   of

dependency, particularly in absence of evidence that proper care not

immediately available from father).

        At both the April and July hearings, the court considered the same

issue: “whether or not the children are dependent and whether or not the

mother cannot provide the necessary care and control of the children.” N.T.

Hearing, 7/24/14, at 14-15.          Indeed, upon review of the record, we take

note that DHS’ original petitions and second petitions present virtually the

same facts to support a finding of dependency.3                    What new facts were


____________________________________________


3
    The only different facts alleged are:

              n. On April 14, 2014, DHS received a General report which
        stated that M.A. was sexually abused by her babysitter’s 13-
        year-old son approximately two years ago; that [M.A.] was in
        the care of the babysitter at the time of this incident; that the
        sexual abuse occurred on two separate occasions; that [M.A.]
        was eight years old at the time of the incident; and that [M.A.]
        was residing [in] the legal custody of [Mother] during the time of
        the incidents. It was also reported that [M.A.] was afraid to tell
(Footnote Continued Next Page)


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presented in the second petition were considered by the trial court.                   DHS

fails to articulate how or why the consideration of facts prior to the April

hearing would have influenced the court’s decision in July.

      As    this   Court      has    explained,     “the   inquiry   must    simply     be

comprehensive enough to establish by clear and convincing evidence that

proper care and control of the children is not immediately available.” In re

M.W., 842 A.2d 425, 431 (Pa. Super. 2004). The lower court’s extensive
                       _______________________
(Footnote Continued)

      anyone about the sexual abuse and that she received services
      through Philadelphia Children’s Alliance.

            o. In May 2014, DHS learned that [Mother] was working
      two jobs and that she was unable to identify any resources that
      would supervise the children while she worked.     Additionally,
      DHS learned that when the children visited with [Mother] during
      the weekends, she did not ensure that they had adequate
      supervision while she worked.

            p. On June 13, 2014, [Father] transported [N.A.] to the
      home of [Grandmother], who agreed that [N.A.] would reside
      with her during the summer months. [M.A.] also remained in
      [Grandmother’s] care.

            q. On June 20, 2014, DHS telephoned The Wedge Medical
      Center and learned that [N.A.] had not received his weekly
      therapy and medication management since April 30, 2014.

           r. [N.A.] is diagnosed                with   severe   attention   deficit
      hyperactivity disorder.

            s. [Mother] has a history of not ensuring that her children
      are appropriately supervised.

                                           ****

             u. [Father] is involved in [N.A.]’s care.

See Petition of 6/30/2014.



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review of the record demonstrates that Mother was willing to provide proper

care and control immediately, and had attempted to remedy any lapses in

care. We find no abuse of discretion.

      Further, we conclude that DHS simply failed to meet its burden in

proving the dependency of the children.           The fact that the court chose to

consider   only   those   facts   that     emerged     subsequent   to   the   prior

determination does not bring res judicata principles into play. We conclude,

therefore, that the trial court’s inquiry at the July 24, 2014 was sufficient,

and we find no error. In re C.R.S., supra.

      Orders affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2015




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