Thursday, February 02, 2012

abuse - expungement - cocaine in infant's system is "abuse" - marital privilege and confidential communications

B.K. v. DPW - Cmwlth. Court - February 1, 2012




Expungement denied in case where the 17-month old child of a married couple, mother B.K. and father R.C., tested positive for the presence of cocaine.


Abuse - The presence of cocaine in the child's system was held to constitute "child abuse" under section 6303(b)(1)(i) of the CPSL, which defines it in pertinent part, as "[a]ny recent act or failure to act by a perpetrator which causes nonaccidental serious physical injury to a child under 18 years of age." 23 Pa.C.S. §6303(b)(1)(i). In turn, section 6303(a)(1) of the Law defines "serious physical injury," in pertinent part, as "[a]n injury that … [s]ignificantly impairs a child‟s physical functioning, either temporarily or permanently." 23 Pa.C.S. §6303(a)(1).


Marital privilege/confidential communications - The court rejected the claim of error for requiring B.K.'s husband, R.C., to testify as to spousal confidential communications after she invoked the privilege of 42 Pa. C.S. 5923. Although the ALJ erroneously relied upon section 5924(b)(3) in allowing R.C.'s testimony, he did not err in overruling B.K.'s objection. The spousal incompetence provision of section 5924 and the spousal confidential communication privilege of section 5923 are quite separate and distinct. The former provision disqualifies a husband or wife to give any testimony adverse to the spouse subject to the exceptions in 5924(b); the latter is much more limited and relates to the competence of a spouse to testify regarding confidential communications.


Section 5924(a) of the Judicial Code provides that "[i]n a civil matter neither husband nor wife shall be competent or permitted to testify against each other." 42 Pa.C.S. §5924(a). However, section 5924(b) provides, in pertinent part, that "Subsection (a) shall not apply in an action or proceeding. . . (3) For custody or care of children, including actions or proceedings relating to visitation rights and similar matters. . . . (4) Arising under 23 Pa.C.S. Ch. 61 (relating to protection from abuse)…. 42 Pa.C.S. §5924(b)(3), (4).


In addition, 23 Pa. C.S. 6381(c) states that : Except for privileged communications between a lawyer and a client and between a minister and a penitent, a privilege of confidential communication between husband and wife … shall not constitute grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse. Thus, the spousal confidential communication privilege of section 5923 cannot be invoked in the instant expunction proceeding because B.K. could not have had a reasonable expectation of marital confidentiality in her statements pursuant to 23 Pa. C.S. 6381(c).


Copies of medical records on which medical testimony was based - The court rejected B.K. claim that the ALJ erred in permitting a doctdor to testify at the hearing because CYS failed to provide copies of the medical records that the doctor relied on while testifying. However, theorder upon which B.K. bases her claim is not contained in the certified record of this case. Rather, B.K. merely appended a copy of the order to her brief as Exhibit A. An appellate court is limited to considering only those facts that have been duly certified in the record on appeal. B.K. could have sought inclusion of the order in the certified record of this appeal as a supplemental record pursuant to Pa.R.A.P. 1926 or 1951(b). . . . Her failure to make the order underlying her claim a part of the certified record of this appeal utterly precludes this Court from considering the merits of the claim and constitutes a waiver of her allegation of error.

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