Napoleon S. v. Walker
| Decision Date | 10 June 2005 |
| Docket Number | No. 32046.,32046. |
| Citation | 617 S.E.2d 801 |
| Court | West Virginia Supreme Court |
| Parties | NAPOLEON S. and Linda S., Plaintiffs Below, Appellants, v. Martha Yeager WALKER, Secretary of West Virginia Department of Health and Human Resources, Defendant Below, Appellee. |
George F. Fordham, Clarksburg, for the Appellants.
Darrell V. McGraw, Jr., Attorney General, Rocco S. Fucillo, Assistant Attorney General, Charleston, for the Appellee.
Justice MAYNARD dissents and reserves the right to file a dissenting opinion.
Justice STARCHER concurs and reserves the right to file a concurring opinion.
This is an appeal by Napoleon and Linda S. (hereinafter "Appellants")1 from an order of the Circuit Court of Kanawha County affirming a decision of the West Virginia Department of Health and Human Resources Board of Review (hereinafter "DHHR") determining that the Appellants could not become the adoptive parents of their grandson, Tyler S. The Appellants contend that the lower court erred in failing to apply a statutory and DHHR policy preference for grandparent adoption. Based upon a thorough review of the record, briefs, and applicable precedent, this Court finds that the lower court abused its discretion in affirming the DHHR decision refusing to permit the Appellants to adopt Tyler S. We therefore reverse and remand for entry of an order requiring that Tyler be placed with the Appellants for adoption, with the additional conditions specified below.
On December 27, 2000, at the age of two months,2 Tyler S. suffered a spiral fracture of the left femur and over twenty bruises on his body. He was placed in foster care on January 1, 2001, upon discharge from the hospital, due to the serious injuries which were later determined to have been inflicted upon him by his biological parents, Ryan and Nicole S. In April 2001, the parental rights of the biological parents were terminated by the Circuit Court of Harrison County based upon this abuse. The Circuit Court of Harrison County found that Ryan S. had inflicted the spiral fracture to Tyler's left femur due to Ryan's frustration with Tyler while trying to give Tyler a bath. At the time of termination of parental rights, the CASA representative, Ms. Jeanne Pote, recommended that Tyler be placed for adoption with the Appellants, parents of Ryan S. and paternal grandparents of Tyler.3 The Circuit Court of Harrison County did not address Ms. Pote's recommendation in the termination order.
Prior to the termination of parental rights, the Appellants had notified the DHHR of their desire to adopt Tyler. A social assessment and home study of the Appellants' home in Florida was completed on May 16, 2001, by the Florida Department of Children and Families. The home study concluded that the Appellants could provide a safe and loving home, despite their difficulty accepting the fact that their son would have intentionally harmed Tyler.4 The Florida home study determined that such opinions would not interfere with the Appellants' ability to provide proper care and protection to Tyler.
The adoption review committee thereafter requested psychological evaluations of the Appellants. These evaluations were conducted on January 21, 2002, by Dr. William Fremouw, a licensed psychologist. His report was favorable toward both Appellants and included observations that they would protect their grandson and would not allow Tyler to be alone with his biological father, Ryan. Specifically, Dr. Fremouw concluded that "[w]hile she [Appellant Linda S.] does not believe that her son physically abused her grandson, she is willing to accept the requirement that he have no direct contact with Tyler if she were to adopt him." The report also indicated that Ryan lives approximately 1,000 miles from his parents and would not be expected to be a frequent visitor.
By letter dated February 25, 2002, the Appellants were notified by the DHHR that they had not been selected for the permanent placement of Tyler. The adoption review committee had determined that the best interests of Tyler would not be served by placing him with the Appellants since the Appellants had failed to acknowledge their son's involvement in inflicting injuries upon Tyler. The guardian ad litem, Ms. Meredith McCarthy, stated the her main concern was Tyler's protection and that the Appellants had continually refused to accept the fact that their son inflicted Tyler's injuries.
The Appellants requested a review of the decision of the DHHR, and an initial grievance hearing was held on July 10, 2002. The original decision was upheld, and the Appellants appealed to the Board of Review of the DHHR. On August 30, 2002, the Chairman of the Board of Review notified the Appellants that their appeal had been denied.
The Appellants appealed to the Circuit Court of Kanawha County, and a hearing was held on November 15, 2002. On February 9, 2004, the lower court entered an order affirming the DHHR decision. The lower court observed that "[b]ecause of the rulings made by the Circuit Court of Harrison County during the pendency of the abuse and neglect hearings, and further because of the distance they must travel from their home in Florida to West Virginia, the [Appellants] have had very little physical contact or opportunity to bond with Tyler since his birth." The Circuit Court of Kanawha County addressed the Appellants' allegations that the grandparent preference had not been properly applied but ultimately found that the DHHR and adoption review committee had not erred in finding that the best interests of the child would not be served by placing him with the Appellants. The court noted that "[t]his decision was based upon significant concerns that Petitioners could not ensure the safety of the child and the lack of a bond between Petitioners and their grandson." The Appellants appealed to this Court.
The Appellants' affidavits stated that the Appellants were aware that their son, Ryan, "admitted to the Circuit Court of Harrison County at the underlying abuse and neglect hearing that he was responsible for the injury or injuries caused to his son Tyler and that this admission was made under oath." The Appellants also stated: "That I accept our son's admission of responsibility for all of Tyler's injury or injuries." The Appellants each further explain:
That in the event my spouse and I are given the opportunity to adopt and do adopt our grandson, Tyler, I would, under no circumstances whatsoever, allow any contact, direct or indirect, between Ryan and our adopted son, Tyler. Further, I would make certain that our son Ryan was aware that I would permit no contact.
With regard to any attempts by Ryan to contact Tyler, the Appellants both assert as follows:
That in the event, that our son Ryan would approach us when Tyler was with either one of us at or outside our home, or if he would contact or attempt to contact Tyler when he was at school or some other activity when I was not present, that I would immediately contact law enforcement authorities and advise them of the situation and request whatever action that would be necessary to protect Tyler and keep Ryan away from him. Further, I would apply to the court for an injunction or protective order to be served against Ryan and do everything in my power to see that the injunction or protective order was fully enforced.
Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).
The guidance for consideration of this matter is primarily provided by statute and a DHHR policy reflecting the intent of the statute. West Virginia Code § 49-3-1(a) (2001) (Repl.Vol.2004) provides, in pertinent part, as follows:
(a)(1) Whenever a child welfare agency licensed to place children for adoption or the department of health and human resources has been given the permanent legal and physical custody of any child and the rights of the mother and the rights of the legal, determined, putative, outside or unknown father of the child have been terminated by order of a court of competent jurisdiction or by a legally executed relinquishment of parental rights, the child welfare agency or the department may consent to the adoption of the child pursuant to the provisions of article twenty-two [§§ 48-22-101 et seq.], chapter forty-eight of this code.
(2) Relinquishment for an adoption to an agency or to the department is required of the same persons whose consent or relinquishment is required under the provisions of section three hundred one [§ 48-22-301], article twenty-two, chapter forty-eight of this code. The form of any relinquishment so required shall conform as nearly as practicable to the requirements established in section three hundred three [§ 48-22-303], article twenty-two, chapter forty-eight, and all other provisions of that article providing for relinquishment for adoption shall govern the proceedings herein.
(3) For purposes of any placement of a child for adoption by the department, the department shall first consider the suitability and willingness of any known grandparent or grandparents to adopt the child. Once any such grandparents who are interested in adopting the child have been identified, the department shall conduct a home study evaluation, including home visits and individual interviews by a licensed social worker. If the department determines, based on the home study evaluation, that the grandparents would be suitable adoptive parents, it shall assure that the grandparents are offered the placement of the child prior to the...
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...record reviewed in its entirety establishes that such placement is not in the best interests of the child.Syllabus Point 4, Napoleon S. v. Walker, 217 W.Va. 254, 617 S.E.2d 801 (2005). It does not appear, however, that a preference is granted to blood relatives generally. Nevertheless, it s......
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