Neely, J. Dissenting - Opinion, Case No.21870 Larry L. v. State of West Virginia

No. 21870 -- Larry L. v. State of West Virginia

Neely, J., dissenting:

        The majority opinion in this case is the supreme exaltation of form over substance. The entire record in this case as recited by the majority cries out for the conclusion that no less restrictive alternative than the Elkins Children's Home was available for Larry.

        Furthermore, as the majority so succinctly explains, the Elkins Children's Home is a non-secure facility with numerous diagnostic and supportive services available. Sending Larry to the Elkins Children's Home involves a very substantial investment of State money to help Larry, who is in sore need of serious help. Larry's parents can't cope with him; the Matoaka Junior High School can't cope with him; the Princeton Junior High School can't cope with him; and, Mr. and Mrs. Bailey apparently can't cope with him. What less restrictive alternative does the majority have in mind?

        Even a blind hog gets an acorn from time to time, so there are, indeed, some notable mental health success stories. Whether the patients would have done as well to have spent the same amount of time with their local bartender is, of course, problematic; nonetheless, bartenders aren't qualified for either State money or Medicaid funds, which makes them undependable community mental health resources for those too impecunious to buy their own drinks or too young to go to bars.

        With all that in mind, I suppose that down in Princeton we could have referred Larry to the ministrations of one of the better off-duty bartenders, or we could have let him act out for another two years in the public schools where a little maturity might (but only might) have cured him in the natural course of things.

        On the other hand, the difference between a status offender like Larry and a criminal offender who commits armed robberies or gets himself killed dealing drugs is about two weeks on the street. The Elkins Children's Home, while perhaps not ideal, is way ahead of whatever is in second place for Larry.

        For all these reasons I dissent.