The Arkansas Department of Human Services (DHS) appeals from the order of the trial court which granted appellee Quinton Wayne Dearman’s motion to dismiss its “Petition for Emergency Custody” on the basis of collateral estoppel.
Quinton Dearman and his wife (now Oleta Colleen Brooks) were divorced by a decree entered April 22,1987. Custody of the parties’ two girls, J.D., born November 5, 1980, and K.D., born August 30,1984, was awarded to the father. On June 1,1990, the mother picked up the girls in accordance with a court order that increased her visitation rights to allow her a six weeks summer visitation, left the state with the children, and did not return until February 22,1991, some seven months after her visitation period had ended. Upon returning to Arkansas, the mother took J.D. to the Washington County Office of DHS where the child was interviewed by Darby Snell, a DHS investigator, with regard to allegations of sexual abuse reportedly committed by the father. After interviewing J.D., Darby Snell told the mother not to return the children to their father.
On February 25,1991, the father filed a motion for contempt of court against the mother for failing to return the children as ordered. The mother filed a counterclaim in which she alleged that the father had sexually abused J.D. and asked for change in custody or, in the alternative, for temporary custody pending the completion of an investigation of the matter.
At a hearing held March 21, 1991, on the father’s petition for contempt and the mother’s counterclaim, the court heard extensive testimony from the father, the mother, J.D., Darby Snell, and a deputy prosecuting attorney concerning the alleged sexual abuse issue. In an order entered April 2, 1991, the chancellor found the mother to be in contempt of court, ordered the children to be returned to their father, and dismissed the mother’s counterclaim on the finding that it was not supported by the evidence.
On April 21, 1991, DHS filed a “Petition for Emergency Custody” in the Juvenile Division of Washington County Chancery Court alleging the children were dependent/neglected. The affidavit of Darby Snell, which was attached to the petition, stated that J.D. was “scared at home” because her father had been dressing K.D. each morning and J.D. “is very uncomfortable that her father may do to her sister as he has done to her.” The affidavit alleges that J.D. said her father had intercourse with her “about one year ago.” On April 22, 1991, the juvenile court entered an ex parte order for emergency custody on the finding that there was probable cause to believe J.D. and K.D. were dependent/neglected children and ordered them placed in the custody of DHS pending further orders of the court.
On April 24, 1991, the father filed a motion to dismiss the DHS petition, and after a hearing at which Darby Snell testified and a transcript of the evidence taken in the chancery case was introduced, along with the pleadings and orders of that case, the court dismissed the petition upon a finding that the issue of sexual abuse by the father had been fully litigated in the contempt hearing held March 21,1991, had been determined in favor of the father, and that the DHS petition was barred by the doctrine of collateral estoppel.
In its first two arguments on appeal DHS argues the trial court erred in applying the doctrine of collateral estoppel because the issue litigated in chancery court was not the same issue as that sought to be litigated in juvenile court and because DHS was neither a litigant in chancery court nor in privity with the children’s mother. The Ozark Legal Services was appointed guardian ad litem for the minor children and has filed a brief which, essentially, makes the same argument made by DHS.
The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by parties in the first suit. Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989). It is based upon the policy of limiting litigation to one fair trial on an issue, Scogin v. Tex-Ark. Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984), and is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).
In Newbern, Arkansas Civil Practice and Procedure, Section 26-12 at 262-63 (1985), the author, in discussing res judicata and collateral estoppel, quotes from Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983) as follows:
Under the doctrine of collateral estoppel, four criteria must be met before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3)it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. . . . Thus, the application of collateral estoppel or issue preclusion is limited to those matters previously at issue which were directly and necessarily adjudicated. . . . However, both doctrines are applied only when the party against whom the earlier decision is being asserted had a “full and fair opportunity” to litigate the issue in question. [Citations omitted.]
In the instant case, the issue of appellee’s sexual abuse was raised by the mother in her counterclaim in chancery court. The court heard extensive testimony on the issue from the father and mother, from the child, J.D., and from the DHS investigator, Darby Snell. Based upon the evidence, the chancery judge found the allegations of the counterclaim were not supported by the evidence and the counterclaim was dismissed.
Nineteen days later, DHS filed its Petition for Emergency Custody based upon allegations of sexual abuse committed by the appellee. At the hearing on appellee’s motion to dismiss, Darby Snell, the DHS investigator whose affidavit accompanied the petition, testified that the allegations of sexual abuse litigated in chancery court were the same ones she was talking about in her affidavit; that there were no new allegations of sexual abuse committed by the father since the time of the chancery court hearing; and that the question of what happened to J.D. had been litigated in chancery court.
Therefore, we find the issue in both cases to be identical, i.e., whether or not the father sexually abused his daughter, J.D.; that this issue has been tried before and determined by a valid judgment; and that the determination of this issue was necessary to the judgment on the mother’s counterclaim.
The question of who may be bound by a judgment is considered in Freidenthal, Kane, and Miller, Civil Procedure § 14.9 (1985). In discussing the general issue underlying collateral estoppel, the authors state:
When an issue has been litigated fully between the parties, spending additional time and money repeating this process would be extremely wasteful. This is particularly important in an era when the courts are overcrowded and the judicial system no longer can afford the luxury — if it ever could — of allowing people to relitigate matters already decided.
Id. at 658. The authors also state that this doctrine applies only to persons who were parties or who are in privity with persons who were parties in the first action and that persons in a privity relationship are deemed to have interests so closely intertwined that a decision involving one necessarily should control the other. Id, § 14.13 at 682-83.
It has been suggested that privity is merely a word used to say that the relationship between one who is a party and another person is close enough that a judgement that binds the one who is a party should also bind the other person. Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950) (Goodrich, J., concurring). This is the view taken in 18 Wright, Miller, and Cooper, Federal Practice and Procedure § 4448 (1981) where it is stated:
As to privity, current decisions look directly to the reasons for holding a person bound by a judgment. This method should be adopted generally so that a privity label is either discarded entirely or retained as no more than a convenient means of expressing conclusions that are supported by independent analysis.
The Arkansas Supreme Court has said that privity within the meaning of res judicata means a person so identified in interest with another that he represents the same legal right. Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 468, 725 S.W.2d 835 (1987). In Restatement (Second) of Judgments § 39 (1982) it is stated that “a person who is not a party to an action but who controls or substantially participates in the control of the present action on behalf of a party is bound by the determination of issues decided as though he were a party.” It has also been held that the identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form. People v. Tynan, 701 P.2d 80, 83 (Colo. Ct. App. 1984). Accord Watts v. Swiss Bank Corporation, 27 N.Y.2d 270, 265 N.E.2d 739 (1970).
In Moore v. Hafeeza, 515 A.2d 271 (N.J. Super. Ct. Ch. Div. 1986), the mother of a child born out of wedlock was held to be in privity for purposes of res judicata and collateral estoppel with the county board of social services which had brought an earlier paternity and support action. The court said:
The underlying purpose of the modern rule is fundamental fairness and common sense. Courts everywhere are being deluged with law suits and the necessity to reduce the volume of litigation must be considered so long as we do not adopt a constitutionally flawed rule which subverts fairness in a due process sense. Thus, it appears to be the modern rule that privity should be applied when:
1. The claim of the nonparty is based on the same transaction or occurrence,
2. The interests of both claimants are similar and no adverse interests exist,
3. The nonparty had notice of the earlier action, and
4. The nonparty did or had an opportunity to participate or intervene in the earlier case.
515 A.2d at 274.
And in Department of Human Services v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991), it was held that where the child’s mother had brought a paternity action against the appellee in compliance with the statutes then in effect, and it was clear that she brought that action to obtain support for the child, the trial court properly found the action brought by DHS, which was also brought to obtain support for the child, was barred by res judicata.
In the present case both the mother’s counterclaim and DHS’s Petition for Emergency Custody are based on allegations of sexual abuse. There is an identity of interest between the mother and DHS in that both seek to prove allegations of sexual abuse against the father of the children, to remove them from his custody, and to protect the best interests of the children. DHS had notice of the earlier action and the opportunity to participate. Indeed, the mother testified that Darby Snell and her supervisor, Janet Richardson, told her that for the best interest of the children they should not be returned to their father. Ms. Snell testified in both chancery court and juvenile court as to the allegations of sexual abuse. And, at the hearing on the father’s motion to dismiss, Ms. Snell testified that without these allegations DHS would not have brought the Petition for Emergency Custody and would not have been interested in bringing a dependency/neglect case against the mother. Moreover, it was only after the chancery court failed to remove the children from appellee’s custody that DHS decided to file its petition for custody.
Therefore, we find the relationship between the mother and DHS sufficient to bar DHS, under the principle of collateral estoppel, from maintaining this action. Collateral estoppel or issue preclusion is not the same concept as res judicata or claim preclusion. Toran v. Provident Life & Accident Ins. Co., supra. The record clearly supports the trial judge’s finding that the issue in this case is the same issue litigated on the mother’s counterclaim in the case in chancery court. The record also clearly shows that in both cases, under the modern view of privity, the relationship between the mother and DHS in the attempt to remove the custody of the two girls from their father was so closely intertwined that the mother and DHS were in privity and are each bound by the chancery court judgment.
Appellant also argues juvenile court is required by Ark. Code Ann. § 9-27-315(a) (1987) to hold a probable cause hearing. That statute provides:
Following the issuance of an emergency order removing the custody of a juvenile from a parent, guardian, or custodian, the court shall within five (5) business days of the issuance of the ex parte order, hold a hearing to determine if probable cause to issue the emergency order continues to exist.
Assuming without deciding that the court was required to hold a probable cause hearing, we think that requirement was satisfied by the hearing held on appellee’s motion to dismiss.
Affirmed.
Jennings and Danielson, JJ., dissent.