J-S06029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.*

MEMORANDUM BY LAZARUS, J.:                            FILED MARCH 26, 2015




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S06029-15



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

appeals from two orders determining      that minors, M.A. and N.A., did not

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.


      The DHS filed a Dependency Petition on November 20, 2013. At
      the Adjudicatory Hearing on April 9, 2014, this Court dismissed
      the Dependency Petition filed on November 20, 2013, whereby
      the Court Ordered,

         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
         are to continue until reunification occurs.    Petition is
         discharged.

      DHS did not file an appeal to the April 9, 2014 Order.

      On June 30, 2014, DHS filed a second Dependency Petition
      attempting to address the same Dependency issues from the
      first Dependency Petition filed on November 20, 2013 that
      included sexual abuse allegations from two years ago. At the

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      Adjudicatory Hearing held on July 24, 2014, this Court once
      again found the evidence not clear and far from convincing to
      prevent reunifying the children with Mother, S.A. (“Mother”) and
      dismissed the second Dependency Petition. This Court also
      found the DHS Worker’s testimony deceptive, whereby the
      evidence offered by the DHS worker created troubling
      contradictions. . . . Pursuant to the July 24, 2014 Order entered
      by this Court, DHS filed a timely Notice of Appeal with Matters
      Complained of on Appeal attached thereto on August 25, 2014.

      On October 6, 2014, the trial court denied the DHS appeal,
      upholding the determination that the minors were not dependent
      children.

Trial Court Opinion, 10/6/14, at 1-2.

      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. DHS posits then, that by limiting the facts considered at the

July 24, 2014 dependency determination, under the doctrine of res




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J-S06029-15


judicata, the trial court erred and did not engage in a thorough

inquiry.1   We address these claims together.

       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).

       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 present in both actions: (1) the identity of the thing sued

upon; (2) the identity of the cause of action; (3) the identity of persons and
____________________________________________


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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J-S06029-15


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


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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J-S06029-15


        Collateral estoppel acts to foreclose litigation in a subsequent
        action where issues of law or fact were actually litigated and
        necessary to a previous final judgment.

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 are

not the same.      It is well settled that the proper inquiry in dependency

adjudication follows a bifurcated analysis: “Is the child at this moment

without proper parental care of 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 forming the basis for the petition filed,



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specifically, whether proper care or control is available in that moment. Id.

It was appropriate, 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. See 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 the legal custody of Ms. Allen during the time of the incidents. It
was also reported that [M.A.] was afraid to tell anyone about the sexual
(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)

abuse and that she received services through Philadelphia Children’s Alliance
(PCA).

      o. In May 2014, DHS learned that Allen 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 Ms. Allen during the weekends, she did not ensure that they had
adequate supervision while she worked.

      p. On June 13, 2014, Mr. Thompson transported [N.A.] to the home of
Ms. Price, who agreed that [N.A.] would reside with her during the summer
months. [M.A.] also remained in Ms. Price’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 (ADHD).

     s. Ms. Allen has a history of not ensuring that her children are
appropriately supervised.

                                             *    *      *

      u. Ms. Thompson 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: 3/26/2015




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