No. 32046 _
Napoleon S. and Linda S. v. Martha Yeager Walker,
Secretary of West Virginia Department
of Health and Human Resources
Maynard, Justice, dissenting:
By reversing
the decisions of the adoption review committee, the DHHR hearing officer, and
the Circuit Court of Kanawha County, and by requiring that Tyler be placed with
his paternal grandparents for adoption, the majority has unintentionally disregarded
Tyler's best interests by placing him back in dangerous and life-threatening
circumstances.
Two-month-old
Tyler was viciously beaten and injured by his biological father, Ryan S. Specifically,
Tyler suffered a broken leg (spiral fracture of the left femur) and more than
twenty bruises on his body. At two months of age! It was found by the Circuit
Court of Harrison County that Ryan S. inflicted the spiral fracture to Tyler's
left femur after becoming frustrated with Tyler while attempting to give him
a bath. Ryan and Nicole S.'s parental rights were rightly terminated because
all would agree that Tyler's future safety depends upon his having absolutely
no contact with Ryan S.
Yet,
the majority now places Tyler back into a situation where he again could easily
have contact with his abuser. I truly believe that this child is in harm's way
and his personal safety is at great risk. The record is crystal clear that Appellants
simply do not
believe that their son, Ryan S., injured Tyler. This is indicated by the findings
of both the Florida home study and Dr. Fremouw. For this very reason, the adoption
review committee, made up of DHHR officials, Tyler's guardian ad litem, and
a CASA representative, concluded that it was not in Tyler's best interests
to be adopted by Appellants because Appellants could not ensure Tyler a safe
home.
Also
troublesome is the fact that the majority's decision is based, at least in part,
on affidavits submitted by Appellants to this Court on appeal. Astonishingly,
the affidavits were filed
after oral argument in this case and after being
solicited by one or more Justices of this Court. To solicit the affidavits during
oral argument; to permit them to be filed post-argument without any stipulation
from the opposing party
(See
footnote 1) (talk about trial by ambush!); to consider them; and
to rely on them in deciding this case is a fugitive procedure
unknown to our law, one that outrageously violates our rules of evidence and
appellate procedure, and one that is grossly unfair to the losing litigants.
This is third-world justice and no other Supreme Court in the United States
would allow such a brutally unjust procedure. However, even if these affidavits
were properly submitted, it is clear to me, and it should be clear to the majority,
that they have absolutely no evidentiary value.
Appellants'
sudden change in thinking is too little too late. Below, Appellants were always
consistent and adamant in their conviction that their son could not have intentionally
injured Tyler. This firm conviction softened only after Appellants lost before
the hearing examiner and the circuit court whose decisions were based, in part,
on Appellant's refusal to accept their son's actions. Further, their change in
thinking can only be described as lukewarm. They now “accept our son's admission
of responsibility for all of Tyler's injury or injuries.” Notably, they
do not accept that their son is responsible for Tyler's injuries, but only that
he has admitted that he is responsible. It does not take a genius to see what
is going on here. Appellants simply are saying what they think this Court wants
to hear in order to get what they want.
In light
of the fact that Appellants do not really accept the fact that their son viciously
injured their two-month-old grandson, once Appellants adopt Tyler, what possible
reason do they have for keeping their son away from Tyler? Without a doubt, due
to the majority opinion, Tyler
will have continued contact with Ryan S.,
the man who fractured his
left femur and battered his body with bruises merely because Tyler was a little
too rambunctious in the bathtub.
It is
simply reckless to accept Appellants' affidavits at face value. By placing Tyler
in a position where he can easily and will likely come into contact with his
abuser, the majority has unintentionally placed Tyler in a dangerous situation
and ignored his best interests. Infants and children who have been physically
abused, had bones broken and are bruised all over should never be placed in a
home where there is any reasonable chance that the same abuser will have another
opportunity to beat and maim them.
Finally,
in light of my grave fear of the imminent danger and grievous bodily harm or
death of this child, and because the West Virginia DHHR cannot monitor this child's
welfare in Florida, I intend to send a copy of this dissenting opinion to the
West Virginia DHHR and have it serve as a formal request that it contact the
analogous Florida agency and request and encourage that agency to open a case
file on Tyler. Hopefully the Florida agency will monitor the home to ensure that
Tyler has absolutely no contact with his abuser. I realize that this is extremely
unusual, but I believe that the circumstances demand it.
For the
reasons set forth above, I dissent.
Footnote: 1