L.A.M. ex rel. L.A.M. v. Commonwealth

*504Dissenting Opinion by

Senior Judge Barbieri:

I respectfully dissent. On March 22, 1985, a criminal complaint was filed charging T.M. with the rape, statutory rape, criminal attempt to commit rape, involuntary deviate sexual intercourse, and indecent assault of his then six year old natural daughter, L.A.M. A preliminary hearing was held on April 11, 1985, during which the child testified that she had been assaulted on at least five occasions in 1983, after which T.M. was bound over for trial on all counts. A non-jury trial was held on October 15, 1985, at which once again the child testified as to sexual abuse under cross-examination and in the presence of her father. T.M. was subsequently acquitted on all charges.

A report of child abuse arising out of this incident was filed with Beaver County OCY on April 21, 1983 and reported to the Statewide central register maintained by DPW. T.M. petitioned DPW to expunge this report under Section 15(d) of the Law, 11 P.S. §2215(d). This request was initially denied and a request for rehearing continued pending resolution of the criminal charges filed against T.M. On July 3, 1986, Beaver County OCY filed a supplemental child abuse report under 55 Pa. Code §3490.67(c), advising DPW that based on the outcome of the trial it was changing the child abuse report from indicated to unfounded. DPW then held a hearing on July 18, 1986, and automatically expunged the child abuse report under Section 14(h) of the Law, 11 P.S. §2214(h). After this decision had been made by Beaver County OCY, the expungement hearing had been held, and the child abuse record destroyed, DPW then notified the child’s mother for the first time of any of these proceedings by letter dated August 1, 1986. It is from this letter that Petitioner appeals.

*505The majority, in my opinion, decides this case under the wrong Section of the Law. T.M. petitioned for ex-pungement under Section 15(d) of the Law, 11 P.S. §2215(d), not 14(h) that the majority partially quotes. The pertinent part of Section 14(h) not quoted by the majority states that:

Section 14(h): When such a report of suspected child abuse is determined by the appropriate child protective service to be a founded or an indicated report, the information concerning such report of suspected child abuse shall be expunged forthwith from the pending complaint file and an appropriate entry shall be made in the Statewide central register. Notice of such determination shall be given to the subjects of the report other than the abused child along with an explanation of the implications of such a finding. . . . (Emphasis added.)

In the present case, Beaver County OCY initially determined the child abuse report to be indicated and transferred the report to the Statewide central register. This removes the case from Section 14(h). The remainder of this Section deals with the authority of the local children and youth agency to expunge ex parte suspected child abuse reports that have not been transferred to the Statewide central register. T.M. filed for ex-pungement of the Statewide central register maintained by DPW under Section 2215(d) of the Law. This is the reason why DPW and not Beaver County OCY is the respondent in this case.

How does one expunge a report of child abuse contained in the Statewide central register maintained by DPW? Section 15(d) of the Law sets up a specific procedure:

Section 15(d): At any time, a subject of a report may request the secretary to amend, seal or *506expunge information contained in the Statewide central register on the grounds that it is inaccurate or it is being maintained in a manner inconsistent with this act. If the secretary grants the request the Statewide central register, appropriate child protective service agency and all subjects shall be so advised within seven days from the date of this decision. The child protective service agency and any subject have 45 days in which to file an appeal with the secretary. If such an appeal is received; the secretary or his designated agency shall schedule a hearing. . . . (Emphasis added.)

The subjects of the report that 14(h) and 15(d) refer to are defined by Section 3 of the Law, 11 P.S. §2203, as any child reported to the central register of child abuse and his parent, guardian or other person responsible also named in the report. It is undisputed that D.T.M. is the parent of the child named in the report. She is entitled to notice of the expungement action, an opportunity to appeal, and a hearing, none of which she received in this case.

We wish to amplify that this case deals with, and was initiated by, a father attempting to expunge an indicated child abuse report from the DPW Statewide central register under Section 15(d) of the Law. Section 14(h) only applies to expungement of suspected child abuse reports that never make it to the Statewide central register by the appropriate child protective service itself. There is a vast difference in procedure between a child protective service automatically expunging unfounded child abuse reports from its pending complaint file and a subject of an indicated child abuse report attempting to expunge a report from a Statewide central register.