People ex rel. L.S.

ZINTER, Justice

(concurring specially).

[¶ 44.] I concur and write only to note that, contrary to the dissent’s view, the affirmance of the trial court’s judgment does not create a new “exception” to the bar of res judicata in abuse and neglect cases.3 See infra ¶¶ 52 & 66. Rather, the judgment is properly affirmed because the fourth requirement of res judicata is not present; ie., there was no full and fair opportunity to litigate the most recent allegation of abuse of the children.

[¶ 45.] A well-established requirement of res judicata is that there must have been “a full and fair opportunity to litigate the issues in the prior adjudication.” Springer v. Black, 520 N.W.2d 77, 79 (S.D.1994) (emphasis added) (quoting In re Guardianship of Janke, 500 N.W.2d 207, 208-09 (S.D.1993) (citations omitted)). But, in this case, there is no dispute that the first trial judge (Judge Caldwell) declined to consider the new allegation that Mother again exposed the children to their molester.4 Thus, there was no full opportunity to litigate the new allegation.

*96[¶ 46.] Although the record is limited, there is no dispute that Judge Caldwell made an oral disposition that dismissed the abuse and neglect proceeding before the new incident occurred. There is also no dispute that after the new incident, Judge Caldwell was informed of the new evidence when the State filed a motion to reconsider. However, Judge Caldwell advised the State that she would not even entertain the motion and that the State should file a new petition.

[¶ 47.] Although Mother and the dissent have a different appellate view of these facts, the State offered the only evidence concerning these matters. Lincoln County State’s Attorney Thomas Wollman testified, without qualification, that after he filed the motion to consider the new allegation, Judge Caldwell initiated a telephone call to his office. From that conversation, he understood that “the court [Judge Caldwell] would not entertain the motion.” Wollman testified that Judge Caldwell indicated “that a new petition would be the correct way to proceed.”5 After considering all of the evidence concerning this matter in a contested hearing, Judge Lieberman adopted Wollman’s testimony. Judge Lieberman specifically found that Judge Caldwell informed Woll-man that she would not consider the matter and that the new allegation constituted a basis for a new petition. In finding of fact 17, Judge Lieberman found:

The court informed Lincoln County State’s Attorney, Tom Wollman, that it no longer had jurisdiction over the matter due to its order dismissing the Petition on January 30, 2004 and declined to hear the State’s Motion for Reconsideration.

And, in finding of fact 18, he found:

The Lincoln County State’s Attorney, Tom Wollman, was advised by the court that the incident on February 12, 2004, constituted facts for a new Abuse and Neglect Petition, as the previous abuse and neglect proceeding (Juv.02-83) was dismissed.

[¶ 48.] These findings cannot now be contested on appeal. First, there is no real dispute that, at Judge Caldwell’s direction, no final appealable order relating to the new incident was entered in the first proceeding.6 But more importantly, Mother conceded that these were different actions based on different allegations and that the State was not provided an opportunity to litigate the new allegation. Specifically, at the hearing on the motion to dismiss in front of Judge Lieberman, Mother argued that both actions (in both *97courts) alleged that she had failed to protect her children against a child abuser who had previously abused them. However, Mother conceded that the actions were not the same because the second action involved “almost the same” allegation but “that ... something ... happened after Judge Caldwell’s decision.” With respect to the new evidence, Mother further conceded that Judge Caldwell “knew about the motion to reconsider [based on the new evidence] and she refused to hear it.” (Emphasis added.) Mother even conceded that Judge Caldwell “would not give [the State] a hearing on their motion [to reconsider].” Consequently, on appeal, there is no room to now adopt new appellate facts and suggest that the State was given a full and fair opportunity to litigate the new evidence in the first action.

[¶ 49.] In the final analysis, there is no dispute that res judicata bars matters that could have been litigated in the prior proceeding. However, as Judge Lieberman specifically concluded, the “issue presented in the Minnehaha County Abuse and Neglect Petition was not actually litigated nor could [it] have been litigated” in the prior proceeding. Furthermore, considering Mother’s concessions and Judge Caldwell’s specific direction to the state’s attorney, this record supports the second trial court’s finding that the State did not have a full and fair opportunity to litigate the new allegation in the first abuse and neglect proceeding.

[¶ 50.] Because there was no full and fair opportunity to litigate the new facts concerning Mother’s subsequent failure to protect the children from their molester, those facts were not precluded from consideration in a second action. They were not precluded because if “[t]he facts which underlie many of the issues do not arise until [after the prior court proceeding,] the doctrine of res judicata ... does not apply.” Lewton v. McCauley, 460 N.W.2d 728, 731 (S.D.1990); see also supra n. 3. For all of these reasons, this case is governed by established requirements of res judicata.

[¶ 51.] GILBERTSON, Chief Justice, joins this special writing.

. A close reading of the Court’s authorities reflects that each case applies a generally recognized requirement for, rather than an abuse and neglect exception to, the bar of res judicata. See State in Interest of J.T.T., 877 P.2d 161, 164 (Utah Ct.App.1994) (noting that through a strict application of "traditional res judicata analysis, uninfluenced by [exception] concerns, ... the prior neglect determination [was] no bar to the termination petition at issue.” The Utah court expressly saved for another day the difficult question of whether, and to what extent, res judicata actually applies in the context of termination of parental rights.); People in Interest of J.R., 711 P.2d 701, 703 (Colo.Ct.App.1985) (involving the same proceeding in which additional facts were presented to the trial court justifying a change in its conclusions from a previous hearing where it refused to terminate the parent-child legal relationship); Matter of Newman, 49 Or.App. 221, 226, 619 P.2d 901, 904-05 (1980) (concluding "if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding can be considered or reconsidered in the later one”); In re Juvenile Appeal (83-DE), 190 Conn. 310, 315, 460 A.2d 1277, 1280 (1983) (permitting the second petition because "the dismissal of the first petition was based on the trial court’s determination that the [first] petition, filed only four months after K was committed, was premature”); In re Pardee, 190 Mich.App. 243, 248, 475 N.W.2d 870, 873 (1991) (noting that "when the facts have changed or new facts develop, the dismissal of a prior termination proceeding will not operate as a bar to a subsequent termination proceeding”); In re Interest of V.B., 220 Neb. 369, 372, 370 N.W.2d 119, 122 (1985) (noting that evidence from the first proceeding could be used in conjunction with evidence from the time period after the first proceeding in determining that there was the requisite change of circumstances to terminate parental rights.)

. There is absolutely no evidence to support the dissent's view that "apparently” Judge Caldwell "did not believe the [new] incident warranted changing her decision,” or that the state's attorney did not "bring the matter to a hearing because he thought the State was going to lose.” Infra ¶¶ 8-9. On the con*96trary, as is explained hereafter, the evidence is quite clear that Judge Caldwell dismissed the first proceeding without considering the new allegation because she believed that it should be presented in the new petition.

. Q: Was there a point in time that the judge ever heard your motion for reconsideration on the record?

A: No. Based upon the conversation I had with the Court it was my understanding — • my impression that the Court would not entertain the motion. In hindsight I guess I could have forced the issue and got a hearing scheduled, but the phone conversation left me with the impression that it would be fruitless and that a new petition would he the correct way to proceed.

. The dissent faults the State for failing to appeal. However, because of Judge Caldwell's oral telephonic direction, there was no order, judgment, or even record from which the State could appeal. The only record of Judge Caldwell's disposition of the new evidence was developed before Judge Lieberman after the second petition was filed. And, it is easy to understand why the state’s attorney could not have scheduled a motion hearing on Judge Caldwell’s docket after she had just informed him that she would not consider the matter and that a new petition should be filed.