Opinion
No. COA13–292.
2013-08-6
In the Matter of A.V., M.V.
J. Edward Yeager, Jr., for petitioner-appellant Mecklenburg County Department of Social Services, Youth & Family Services. Leslie Rawls, for respondent-appellee father.
Appeal by petitioner from order entered 21 November 2012 by Judge Donald R. Cureton, Jr., in Mecklenburg County District Court. Heard in the Court of Appeals on 15 July 2013. J. Edward Yeager, Jr., for petitioner-appellant Mecklenburg County Department of Social Services, Youth & Family Services. Leslie Rawls, for respondent-appellee father.
Administrative Office of the Courts, by Appellate Counsel Tawanda N. Foster, for guardian ad litem.
DILLON, Judge.
The Mecklenburg County Department of Social Services, Youth and Family Services (“DSS”) appeals from an order dismissing its juvenile petition. After careful review, we reverse and remand.
On 26 July 2012, DSS filed a petition alleging that A.V. and M.V. were dependent juveniles. DSS stated that it had received a referral alleging that respondent, the father of the juveniles, had sexually abused one of the juveniles. At the time of the referral, the juveniles had already been placed by the parents in care outside of the home. While investigating the referral, DSS interviewed both respondent and the mother, and each parent indicated that the juveniles were “not welcome back in their home.” Additionally, both parents stated they did not have an alternative placement arrangement. Accordingly, DSS alleged that the juveniles were dependent because they were in need of placement, that they lacked a parent, guardian or caregiver who could provide a proper placement, and that the parents lacked an appropriate alternative caregiver arrangement. On 18 October 2012, nunc pro tunc 14 September 2012, the juveniles were adjudicated dependent juveniles.
On 20 September 2012, DSS filed a second juvenile petition, this time alleging that the juveniles were abused and neglected. DSS stated that upon further investigation, A.V. made claims that respondent “had engaged in sexual intercourse with [her] on several different occasions going back for more than a year” and that she had told her brother, M.V., about these occurrences. M.V. confirmed that he knew of the allegations by A.V., and further that A.V. had specifically requested that he not disclose the allegations to anyone. DSS further stated that, based on the allegations, the Charlotte–Mecklenburg Police Department opened an investigation and ultimately arrested respondent on 21 August 2012 and charged him with statutory rape, incest, and indecent liberties with a child.
On 27 September 2012, respondent and the mother filed a motion to dismiss the petition filed by DSS which alleged abuse and neglect. Respondent and the mother argued that the second petition, filed after adjudication on the merits of the first petition, should be barred by the doctrine of res judicata and was a waste of judicial resources. Following hearings held on 27 September 2012 and 16 October 2012, by order entered 21 November 2012, the trial court dismissed the petition with prejudice. DSS appeals.
The sole argument on appeal is whether the trial court erred by dismissing the second juvenile petition which alleged abuse and neglect. The trial court dismissed the petition on the basis of res judicata.
Under the doctrine of res judicata, a final judgment on the merits in a prior action will prevent a second suit based on the same cause of action between the same parties or those in privity with them. Generally, in order that the judgment in a former action may be held to constitute an estoppel as res judicata in a subsequent action there must be identity of parties, of subject matter and of issues.
Merrick v. Peterson, 143 N.C.App. 656, 662, 548 S.E.2d 171, 175–76 (internal citations and quotations omitted), disc. rev. denied, 354 N.C. 364, 556 S.E.2d 572 (2001).
Here, in the first petition, DSS alleged that the juveniles were dependent because respondent and the mother told DSS that the juveniles would not be welcomed back in their home, and because there was no alternative caregiver arrangement. Therefore, the children were in need of placement. While DSS disclosed that it was investigating claims of sexual abuse, this fact was not necessary to the allegation of dependency raised in the petition. The second petition, which alleged abuse and neglect, was based on circumstances arising subsequent to the filing of the first petition, namely, A.V.'s disclosure during interviews that she had been sexually abused by respondent; M.V.'s admission that A.V. told him of the abuse and asked him to remain silent; and respondent's arrest on charges of statutory rape, incest, and taking indecent liberties with a child. Thus, because DSS based the second petition only upon facts which occurred after the filing of the first petition, there was no identity of subject matter between the first and second petitions and res judicata does not apply. See In re K.J.D., 203 N.C.App. 653, 665, 692 S.E.2d 437, 446 (2010) (holding, because DSS's second petition alleged matters which arose subsequent to the filing of the first petition, there was no identity of subject matter). Accordingly, we reverse the trial court's order and remand for an adjudicatory hearing on DSS's second petition.
Respondent suggests two alternative bases for affirming the trial court's order, which we address in this opinion should these arguments arise again on remand. State v. Lloyd, 354 N.C. 76, 128, 552 S.E.2d 596, 631 (2001) (stating that “in the interest of judicial economy, we address three additional matters that may recur upon remand”). First, respondent suggests that the second petition was moot because the prayer for relief was already satisfied, i.e., the children were already in DSS custody. However, because the consequences of an adjudication of neglect or abuse differ from the consequences of an adjudication of dependency, we disagree. For example, a prior adjudication of neglect is often used to support termination of parental rights on the ground of neglect. In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984). Moreover, an adjudication of abuse may lead to a parent being placed on the Responsible Individuals List. SeeN.C. Gen.Stat. § 7B–311(b) (2011). Second, Respondent contends that DSS should have amended its initial petition rather than file a new petition. Pursuant to N .C. Gen.Stat. § 7B–800 (2011), “[t]he court, in its discretion, may permit a petition to be amended.” Here, although it appears that an amendment to the petition may have been an option, it was the only option available to DSS. In fact, our courts have held that a petition may be amended only when additional allegations do not change the nature of the conditions upon which the petition is based. See In re M.G., 363 N.C. 570, 681 S.E.2d 290 (2009); In re D .C., 183 N.C.App. 344, 644 S.E.2d 640 (2007). Thus, we disagree with this contention.
REVERSED and REMANDED. Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).