(concurring in result in part; dissenting in part).
As the child in question was returned to the parents’ home, based upon, inter alia, testimony by the state’s expert that the home was a safe place for the child, I agree with the majority writer on that aspect of our decision. State is bound by its own testimony. Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985). As State’s brief on page 11 expresses that “the DSS could not identify” a specific incident of abuse to J.A.H., my conclusion is augmented that the child was properly returned to the home. Thus, there was no trial error. Matter of A.H., 421 N.W.2d 71 (S.D.1988).
Trial court erred in finding that a ten-day-old infant, seized in a cafe, under an emergency order (where there was no emergency established) was either dependent or neglected. Res judicata is the base rationale for the holding of the trial court. As this is a different child, at a different time, and under different circumstances, res judicata is not applicable. Essentially, res judicata cannot apply here because the issues are different. As we have pointed out, the issues must be identical. Moe v. Moe, 496 N.W.2d 593 (S.D.1993); Raschke v. DeGraff 81 S.D. 291, 134 N.W.2d 294 (1965). Experts, as an example, opined that significant constructive changes in the parents’ demeanor and attitude had taken place. Said experts were Jacquie Kelley, pediatric nurse, and Lynn Goehring, psychologist. Trial court apparently took the position that it could rely, for proof, upon findings in a prior dependency and neglect proceeding. Though the prior proceedings may be considered by the trial court, they surely cannot be elevated to a res judicata stature. Older proceedings are simply not conclusive. Matter of R.Z.F., 284 N.W.2d 879 (S.D.1979). Therefore, I dissent on af-firmance of a finding of dependency and neglect.