I concur
with the majority opinion not only because it is legally sound, but also because
I believe that the result reached below, and affirmed by this Court, was necessitated
by the particular facts of this case. While I appreciate and agree with the dissent's
concerns, I write separately to express my disagreement with the view set out
in the dissenting opinion. The dissent reasons that the medical evidence proved
that Dominic M. suffered from shaken baby syndrome, and that his father, Charles
M., entered a guilty plea to the charge of involuntary manslaughter for Dominic's
death. Based on these two factors, the dissent avers that it was error to reunite
Sean M. with his family because he is in danger in the presence of his father.
Based upon a complete review of the unique and specific facts of this case, especially
the ultimate medical conclusions regarding the probable circumstances of
Dominic's death, I must disagree.
First,
the trial court looked closely at all of the medical record, not just preliminary
medical records. This complete medical record is, I believe, of great importance
to the determination of whether this family should be reunited or should remain
separated. It is understandable why the dissent, as well as many of the initial
care givers involved in this case, felt that Dominic died from shaken baby syndrome.
When Dominic first presented for treatment, shaken baby syndrome was the only
practical option considered as a possible diagnosis. However, as the case progressed
and further medical evidence was produced which contradicted the previous diagnosis,
it soon became apparent that everyone involved needed to take a very close look
at the entirety of the medical facts. When Dominic arrived at the hospital, he
suffered from a “large brain bleed” caused from head trauma. His parents,
Charles and Miranda, were questioned and were unable to explain their son's injuries.
Because of their lack of an explanation, it was assumed that the child had been
physically abused and the West Virginia Department of Health and Human Resources
(“WVDHHR”) was contacted. To be clear, I do not fault the hospital's
decision to contact the agency, nor do I fault the WVDHHR's vigorous prosecution
of the child abuse and neglect proceedings.
As the
investigation continued and a guardian ad litem became involved on Sean's
behalf, and the corollary criminal trial of Charles ensued, more evidence was
developed and a different explanation for Dominic's injuries began to emerge.
It became apparent that Dominic did not suffer from shaken baby syndrome. Not
only were the normal signs of shaken baby syndrome absent, but it also became
apparent that Dominic suffered from a subdural hematoma and that there was
evidence of an “old bleed” in his brain. Much of this evidence was
learned after the autopsy, which is significant because it is critical evidence
that the initial treating doctors did not have available to them before making
a diagnosis of shaken baby syndrome. The experts' testimony regarding the timing
of this bleed correlated with the timing of a fall off of a bed at the home
of Dominic's grandparents three weeks prior to his death. There was also evidence
presented regarding the possibility of Dominic having a clotting disorder.
Again, this information was learned post-autopsy and was not available to the
treating physicians prior to their provisional diagnosis.
Once
all of the evidence was gathered and the experts convened, a very different picture
appeared from what was initially thought at the outset of the case. The trial
judge initially found that “Dominic . . . suffered from symptoms consistent
with Shaken Baby Impact Syndrome,” and found that “[t]he infant, Sean
. . . should not be returned to the custody of his parents[.]” However,
after hearing all of the evidence and hearing the experts' explanation, this
same trial judge changed his mind and found that there was no evidence that Sean
had ever been the victim of abuse. Sean was ordered returned to the custody of
his parents. I am also impressed by the fact that the experts on the behalf of
the father felt so
strongly about the plight of the father that they refused any payment for their
time or travel associated with their review of this case. Also, the Court-Appointed
Special Advocate, whose job it is to advocate on behalf of children, supported
the position of the parents in this case, and even drove to Charleston, West
Virginia, to be present in person to show that support when this case was argued
before us. In summary, the overall picture revealed a very different portrayal
of Dominic's death than what was initially suggested.
I also
cannot agree with the dissent's reliance on the father's entry of an Alford plea
to bolster the belief that Sean should not be returned to the custody of his
parents. At oral argument before this Court, counsel for the father made it very
clear why Charles entered an Alford plea. The family was already deeply
in debt from the first criminal trial that was set aside due to juror misconduct.
Subsequent to this first trial, new evidence and new experts were found who explained
the reality of what happened to Dominic. Counsel for Charles stated at oral argument
that the family was facing at least another $100,000.00 in trial expenses to
proceed with a second trial, on top of the debt accumulated from the first trial.
We were also informed that other family members were putting themselves in debt
to support Charles and Miranda in their legal battle. Tragically, Sean has already
lost his brother. Then, he was separated from his parents. In the absence of
evidence proving that Dominic suffered from shaken baby impact syndrome and the
compelling evidence that shows he died of an accidental fall, I cannot fault
the circuit court's decision to reunite Sean with his family.
In view
of the foregoing, I concur.