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T.D v. Department of Public Welfare

October 11, 2012

T.D., PETITIONER
v.
DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



The opinion of the court was delivered by: Bernard L. McGINLEY, Judge

Submitted: August 24, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE McGINLEY

T.D. petitions for review of the final order of the Department of Public Welfare (DPW) Bureau of Hearings and Appeals (BHA), which adopted the Administrative Law Judge's (ALJ) Recommendation and denied T.D.'s request to expunge an indicated report of child abuse.*fn1

On May 3, 2011, FCCYS received a report of suspected abuse involving a 10-year old female child, K.D. The report alleged that the child had been at risk when the natural mother, T.D., took steps to commit suicide and intended to take her child's life along with her own. Specifically, she intended to take their lives by inserting a hose from the tailpipe of her vehicle into the inside of the vehicle so that the two would die of carbon monoxide poisoning. Caseworker Nicole Robinson (Caseworker Robinson) conducted the investigation.

After interviewing the child, the child's father, the mother's therapist, and others, Caseworker Robinson filed a CY-48 on June 3, 2011, indicated the case and listed T.D. as the perpetrator. The reason given for the indicated case was that the child was placed at imminent risk of physical abuse since the mother admitted that she planned to kill herself and her daughter.

Subsequently, T.D. requested expungement of the indicated report. The ChildLine and Abuse Registry denied her request and T.D. filed an appeal to the BHA.

The ALJ heard testimony on September 13, 2011. FCCYS offered the testimony of Tracy Kowal (Kowal), a licensed social worker and private therapist. Kowal had her own private practice and also contracted with the Crimes Victims' Center (CVC) in Uniontown. Through the contract with CVC Kowal provided sexual assault counseling. Kowal came into contact with T.D. through her contract with CVC.

T.D.'s counsel objected to Kowal's testimony on the grounds that it violated the sexual assault counselor/patient privilege set forth in 42 Pa.C.S. §5945.1(b)*fn2 . Counsel argued that T.D.'s admissions were made in the course of her therapy sessions with Kowal and as such they were absolutely privileged.

The FCCYS argued, on the other hand, that Kowal was required to report the suspected child abuse under Section 6311 of the Child Protective Services Act, 23 Pa.C.S. §6311.*fn3

After a lengthy discussion with counsel, the ALJ permitted Kowal to testify only with respect to her child abuse discussions with T.D. but not regarding any sexual assault issues she may have previously discussed with T.D. Hearing Transcript, September 13, 2011, (H.T.) at 25; Reproduced Record (R.R.) at 10a. The ALJ instructed the parties and witness:

[I]t sounds to me more like all we are doing here, we are not dealing with any sexual assault counseling, we are dealing with problems which may have created a depression, and we are not going to get into or we won't discuss anything that may have been discussed with respect to your counseling as a sexual assault counselor.

H.T. at 39; R.R. at 15a.

The ALJ stated he would revisit T.D.'s motion to exclude Kowal's testimony before he issued the adjudication after giving the parties an opportunity to brief the issue.

Kowal testified that her first formal session with T.D. occurred on April 14, 2011. T.D. initially went to see Kowal "because she was having some problems coping with some situations in her life, particularly the fact that she was separated from her husband, she was suffering extreme anxiety." H.T. at 38; R.R. at 15a. On that date, T.D. revealed to Kowal that "there had been a sex assault in her life." H.T. at 46; R.R. at 17a. Kowal did not testify regarding the details of that sex assault. T.D. ...


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