In re A.M. ( 2018 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In re A.M. June 11, 2018
EDYTHE NASH GAISER, CLERK
No. 17-1135 (Marion County CC-24-2017-JA-12) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Father R.M., by counsel Heidi M. Georgi Sturm, appeals the Circuit Court of
Marion County’s November 22, 2017, order terminating his parental rights to A.M.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Lee Niezgoda,
filed a response in support of the circuit court’s order. The guardian ad litem (“guardian”), Robin
M. Babineau, filed a response on behalf of the child also in support of the circuit court’s order.
On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing parent
based upon abandonment and terminating his parental rights.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990). Additionally, petitioner’s counsel filed a brief in accordance
with Rule 10(c)(10)(b) of the West Virginia Rules of Appellate Procedure, which provides that
[i]n extraordinary circumstances, if counsel is ethically compelled to disassociate
from the contentions presented in the brief, counsel must preface the brief with a
statement that the brief is filed pursuant to Rule 10(c)(10)(b). Counsel should not
inject disclaimers or argue against the client’s interests. If counsel is ethically
compelled to disassociate from any assignments of error that the client wishes to
raise on appeal, counsel must file a motion requesting leave for the client to file a
pro se supplemental brief raising those assignments of error that the client wishes
to raise but that counsel does not have a good faith belief are reasonable and
warranted.
Per this Rule, petitioner’s counsel filed a motion requesting leave for petitioner to file a pro se
supplemental brief. This motion was granted, and petitioner was directed to file a supplemental
brief on or before March 23, 2018. Petitioner, however, did not file a supplemental brief.
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presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
In January of 2017, the DHHR filed an abuse and neglect petition against the parents.2
The petition alleged that then fifteen-year-old A.M. moved out of her mother’s home and was
living with a friend’s family member, and that the mother failed to supervise the child, abused
drugs, and was incarcerated due to her substance abuse. The petition alleged that petitioner
abandoned A.M.
The circuit court held a preliminary hearing in February of 2017. Petitioner failed to
attend but was represented by counsel. In April of 2017, the circuit court held an adjudicatory
hearing wherein petitioner failed to attend but was represented by counsel. Evidence was
presented that petitioner had no relationship with A.M., failed to participate in the current case,
and failed to participate in a prior abuse and neglect proceeding wherein A.M. was removed
from the mother’s care for approximately one year. After hearing evidence, the circuit court
adjudicated petitioner as an abusing parent based upon his abandonment of A.M.
The circuit court held a dispositional hearing in August of 2017. Petitioner again failed to
attend but was represented by counsel. Evidence was presented that petitioner had not
participated in the case and had not contacted the DHHR. Further, petitioner advised the parties
through his counsel that he did not desire contact with his child. The circuit court was also
advised that A.M. desired that petitioner’s parental rights be terminated. After hearing evidence,
the circuit court found that there was no reasonable likelihood that petitioner could correct the
conditions of abuse in the near future and that termination of his parental rights was in the child’s
best interests. It is from the November 22, 2017, dispositional order terminating petitioner’s
parental rights that he appeals.3
The Court has previously established the following standard of review:
“Although conclusions of law reached by a circuit court are subject to de
novo review, when an action, such as an abuse and neglect case, is tried upon the
facts without a jury, the circuit court shall make a determination based upon the
evidence and shall make findings of fact and conclusions of law as to whether
such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when,
although there is evidence to support the finding, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed. However, a reviewing court may not overturn a finding simply
because it would have decided the case differently, and it must affirm a finding if
the circuit court’s account of the evidence is plausible in light of the record
2
The mother and A.M. resided in West Virginia. Petitioner resided in North Carolina.
3
The mother voluntarily relinquished her parental rights during the proceedings below.
The permanency plan for the child is legal guardianship with a friend’s family member.
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viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
470 S.E.2d 177 (1996).
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).
On appeal, petitioner argues that the circuit court erred in adjudicating him as an abusing
parent and in terminating his parental rights. However, we note that in his brief before this Court,
petitioner failed to include a standard of review, to cite to a single case in support of his
argument, and to cite to the appendix record. These failures are in direct contradiction of this
Court’s Rules of Appellate Procedure and specific directions issued by administrative order.
Specifically, Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure requires
that
[t]he brief must contain an argument exhibiting clearly the points of fact and law
presented, the standard of review applicable, and citing the authorities relied on. .
. [and] must contain appropriate and specific citations to the record on appeal[.]
The Court may disregard errors that are not adequately supported by specific
references to the record on appeal.
(emphasis added). Additionally, in an Administrative Order entered December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, then-Chief Justice Menis E.
Ketchum specifically noted in paragraph two that “[b]riefs that lack citation of authority [or] fail
to structure an argument applying applicable law” are not in compliance with this Court’s rules.
Further, “[b]riefs with arguments that do not contain a citation to legal authority to support the
argument presented and do not ‘contain appropriate and specific citations to the record on appeal
. . .’ as required by rule 10(c)(7)” are not in compliance with this Court’s rules. Here, petitioner’s
brief contains no citations to either applicable law or the record on appeal. “A skeletal
‘argument,’ really nothing more than an assertion, does not preserve a claim. . . . Judges are not
like pigs, hunting for truffles buried in briefs.” State v. Kaufman, 227 W.Va. 537, 555, 711
S.E.2d 607, 625 (2011) (quoting U.S. v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). Rule 10(j)
of the West Virginia Rules of Appellate Procedure further states that “[t]he failure to file a brief
in accordance with this rule may result in the Supreme Court refusing to consider the case[.]”
Petitioner’s entire brief is inadequate, as it fails to comply with the administrative order and the
West Virginia Rules of Appellate Procedure. Accordingly, this Court will not address
petitioner’s assignments of error on appeal.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 22, 2017, order is hereby affirmed.
Affirmed.
ISSUED: June 11, 2018
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CONCURRED IN BY:
Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Elizabeth D. Walker
Justice Loughry, Allen H., II suspended and therefore not participating.
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