Brown v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

KELLEY, Judge,

concurring.

I concur with both the reasoning and result of the majority, but would reverse the order of the trial court on the following additional grounds.

In my opinion this case presents an example of state action which is unjustified, inappropriate, and contrary to common sense. In this matter, Licensee twice expressly assented to the officer’s request that she submit to a blood alcohol test. After Licensee initially and unconditionally agreed to submit to the test, the police officer informed Licensee that another officer would take her four-year old daughter to the police station while Licensee would be taken to the hospital to have the test performed. Licensee understandably, and in my opinion rightly, refused to leave her young daughter alone at the police station.

The real crux of this case is a mother’s right to determine whether it is in the best interests of her child to be separated from her mother under the existing circumstances. I find it instructive to note that the record from the trial court contains no references to any consideration by the police of bringing child endangerment charges against Licensee under Section 4304(a) of the Pennsylvania Crimes Code.1 That the police did not contemplate such a charge indicates to me that Licensee was the person charged with determining, and fit to determine, the course of action in the best interest of her child at all times during the events in issue. The esteemed majority describes Licensee’s actions in refusing to leave her, child at the police station as her “choice”, but I would go further and note that Licensee, under Section 4304, had a duty to keep her daughter in her care rather than to leave the child in the care of strangers whose qualifications regarding child care could be most generously described as unknown.

Our Supreme Court has held that the duties articulated within Section 4304 are to be given meaning by reference to the common sense of the community, and to the broad protective purposes for which it was enacted. Commonwealth v. Mack, 467 Pa. 613, 359 A.2d 770 (1976). We are fortunate, in any attempt to divine the common sense of the community, to have on the record of the trial court below the Honorable Robert A. Wright’s remarks that common sense dictates that any mother would not want to leave her child with strangers. Reproduced Record (R.R.) at 47a. Judge Wright also commented, as I believe an overwhelming majority of members of the community would, that he himself would have made the same choice that Licensee made under the same circumstances.

Additionally, and especially in light of the fact that no case law directly on point exists regarding this issue, I believe that the common sense of any community would dictate that a parent should not voluntarily leave a child in the care of any individual who would place that four-year old child into a vehicle without restraining the child with a safety belt, as the officer in this case did when he transported Licensee and her daughter to the police station. R.R. at 41a.

*75"While the outstanding job generally performed by police officers of our Commonwealth in protecting our citizenry can be easily assumed, their ability to spontaneously provide proper child care for a four-year old child cannot be assumed to be within their field of expertise and training. See, e.g., the facts surrounding White v. Rockford, 592 F.2d 381 (7 th Cir. Ill.1979) (police officers’ judgment that minors could take care of themselves following arrest of their parent/guardian resulted in abandonment of minors, without adult supervision, on the side of a major highway in inclement weather). In the instant case, the record contains no references to any assertions by the police that they are qualified or experienced in caring for young children.

Under the U.S. Constitution, the integrity of the parent/child relationship has been granted protection under the Due Process Clause of the Fourteenth Amendment2, the Equal Protection Clause of the Fourteenth Amendment3, and the Ninth Amendment4. It is both common sense and Federal law, that, absent compelling circumstances, the state may not interfere with the parent/child relationship.5 I am not necessarily suggesting that the instant case demands a Due Process or other constitutional analysis, and I recognize that these Federal precedents are somewhat distinguishable factually. They are instructive, however, in illuminating the gravity inherent in any state action to separate parent from child, and the lengths to which our state and federal courts have gone to protect this relationship. They are relevant to this case in that they emphatically demonstrate that state action that infringes upon familial relationships has a long history of being disallowed without strong justification by the state actor.

I note that the record is bereft of any reason as to why Licensee had to be separated from her daughter in order to undergo the blood alcohol test at the hospital. The trial court stated that the officer made a reasonable attempt to explain why this had to be done, however, the details of this explanation are not in the record. That a police officer could undertake such a separation without subsequently being able to place on the record any justification for the separation is inconceivable to me, and should not be allowed to stand upon a legal argument that ultimately amounts to “because I said so”. I find this especially true in the instant case, where the record reveals that the hospital to which Officer Mercadante intended to take Licensee was a scant two minutes from the spot where he stopped Licensee. R.R. at 44a. In light of the fact that Licensee appears to have been taken to the police station for the purpose of signing a consent form6 that was not a prerequisite to the blood alcohol testing in question7, and the proximity of the hospital, the officer’s decision seems perplexing at best, and impermissible at worst given the complete absence of justification or offered state interest. Because the record is devoid of a valid reason to separate Licensee from her four-year old daughter, I am bewildered as to why the officer did not allow the child to accompany her mother to the hospital. This *76simple accommodation to the circumstances would have allowed the officer to acquire the requisite evidence for a possible prosecution of Licensee, avoided the imposition of a testing condition not mandated by Section 1547, and most importantly, preserved untrammeled Licensee’s right and duty to insure that her young child was properly cared for.

Accordingly, I agree with the reversal of the trial court’s order.

. “A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.” 18 Pa. C.S. § 4304(a).

. Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).

. Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

. Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).

. Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).

. I would note that the Marple Township Police Station is equipped with a Breathalyzer, but at the time of Licensee's arrest it had been inoperable for over seven weeks due to the fact that its calibration had not been maintained. R.R. at 34a.

. See Conrad, discussed.by the majority.