Argued, June 15, 2015
Appealed from No. 021-12-0500 and 021-13-0479. State Agency: Department of Public Welfare.
Erica N. Burns, Pittsburgh, for petitioner.
Amy Jo Carnicella, Assistant Counsel, Pittsburgh, for respondent.
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge.
PATRICIA A. McCULLOUGH,
This case of first impression addresses whether privileged or confidential communications between sexual assault counselors and their patients or clients are admissible as evidence in child abuse expungement proceedings. Pittsburgh Action Against Rape (PAAR) petitions for review of the May 27, 2014 oral ruling from an administrative law judge (ALJ) denying its motion to quash a subpoena and directing an employee/counselor, V.W., to testify at an expungement hearing concerning communications that a victim made to her during sexual assault counseling.
Upon review, we conclude that the ALJ's ruling is appealable as a collateral order. In keeping with the express purpose of the Child Protective Services Law (CPSL), specifically, to protect the child from sexual abuse, we further conclude that the language of section 6381(c) of the CPSL, 23 Pa.C.S. § 6381(c), pertaining to statements between counselors and their patients or clients, necessarily includes statements between a sexual assault counselor and a victim of sexual assault (patient/client) and renders them admissible as evidence in expungement proceedings. This conclusion is not only compelled by the plain language of section 6381(c) of the CPSL but also furthers the overarching intent and purpose of the CPSL to " encourage more complete reporting of suspected child abuse" and to provide " protection for children from further abuse." Section 6302(b) of the CPSL, 23 Pa.C.S. § 6302(b). Specifically, section 6302(b) of the CPSL states:
(b) Purpose. --It is the purpose of [the CPSL] to encourage more complete reporting of suspected child abuse; to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse; and to establish in each county protective services for the purpose of investigating the reports swiftly and competently, providing protection for children from further abuse and providing rehabilitative services for children and parents involved so as to ensure the child's well-being and to preserve, stabilize and protect the integrity of family life wherever appropriate or to provide another alternative permanent family when the unity of the family cannot be maintained. It is also the purpose of this chapter to ensure that each county children and youth agency establish a program of protective services with procedures to assess risk of harm to a child and with the capabilities to respond adequately to meet the needs of the family and child who may be at risk and to prioritize the response and services to children most at risk.
23 Pa.C.S. § 6302(b) (emphasis added).
Clearly, the CPSL's purpose encompasses not only remedying circumstances of past abuse, but preventing further abuse of children who have already been victimized. Expunction proceedings could render prior protection meaningless if necessary information concerning the circumstances of abuse was precluded and the proceedings relied, instead, only on the alleged perpetrator's statement of facts.
In discussing the underlying purpose of the CPSL, our Supreme Court has stated: " The need to prevent child abuse and to protect abused children from further injury is critical. The legislature sought to encourage greater reporting of suspected child abuse in order to prevent further abuse and to provide rehabilitative services for abused children and their families. The [CPSL] also establishes a statewide central registry for the maintenance of indicated and founded reports of child abuse, as identifying perpetrators of abuse serves to further protect children." P.R. v. Department of Public Welfare, 569 Pa. 123, 801 A.2d 478, 483 (Pa. 2002) (citations omitted).
M.L. instituted administrative proceedings seeking expunction of an indicated report identifying him as the perpetrator of child abuse against his daughter, L.S. On May 7, 2014, the Department of Public Welfare (DPW), Bureau of Hearings and Appeals, acting upon the request of Washington County's Children and Youth Social Service Agency (CYS), served a subpoena on V.W. The subpoena was issued to V.W. in her role as a counselor for PAAR and ordered her to testify at M.L.'s May 27, 2014 expunction hearing. (Reproduced Record (R.R.) at 7a-8a.) It is undisputed that V.W. provided sexual assault counseling services to L.S. (DPW's brief at 2; see PAAR's brief at 6-7.)
PAAR and V.W. filed a motion to quash the subpoena, contending that V.W. is a sexual assault counselor and that her testimony was absolutely privileged pursuant to section 5945.1(b) of the Judicial Code, 42 Pa.C.S. § 5945.1(b), because L.S. did not waive the privilege through written consent. (R.R. at 3a-4a.)
At the expungement hearing, the ALJ orally denied the motion to quash and ordered V.W. to testify. The ALJ also denied PAAR's request to stay the proceedings pending appeal and considered,
but did not expressly rule on, CYS's objection that counsel for PAAR be present during V.W.'s testimony. CYS argued that counsel for PAAR should not be allowed to attend V.W.'s testimony because V.W. was not a party to the action and people are not normally allowed to observe expungement proceedings. (R.R. at 14a-15a.)
V.W. testified at the hearing, seemingly without the assistance of counsel, and provided information pertaining to her interaction with L.S. and L.S.'s symptoms. (R.R. at 35a-37a.) On direct examination, V.W. was asked by ...