In re: M.D. and S.D.
County 16-JA-1 & 16-JA-2
Father D.D., by counsel Timothy V. Gentilozzi, appeals the
Circuit Court of Tucker County's June 12, 2017, order
terminating his parental rights to M.D. &
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"), Heather M. Weese, filed a
response on behalf of the children in support of the circuit
court's order. On appeal, petitioner argues that the
circuit court erred in terminating his parental rights.
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 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.
November of 2016, the DHHR filed an abuse and neglect
petition against petitioner alleging drug use and domestic
violence between petitioner and the children's mother.
The petition also alleged that petitioner was arrested in
Pittsburgh, Pennsylvania, where he had traveled for his
monthly suboxone appointment, and was found intravenously
abusing his medication by injecting it in his foot in the
parking lot of the medical provider in the presence of his
wife and children. Upon petitioner's arrest, police found
needles, knives, opium, and cocaine within reach of the
children. Subsequently, the DHHR initiated an in-home safety
plan to address these issues.
February of 2017, the circuit court held an adjudicatory
hearing, which petitioner, though represented by counsel,
failed to attend. The DHHR presented testimony regarding the
DHHR's response to the referral and the incident that
occurred in Pittsburgh, during which petitioner was arrested
for using drugs in the presence of his children. The circuit
court found that petitioner used drugs in the presence of the
children and failed to comply with an in-home safety plan put
in place by the DHHR to prevent the removal of his children.
Accordingly, petitioner was adjudicated as an abusing parent.
April of 2017, the circuit court held a dispositional
hearing. This was petitioner's first appearance in any of
the proceedings. Prior to the dispositional hearing,
petitioner failed to attend any hearings, failed to
participate in any multidisciplinary treatment team meetings,
and failed to submit to a drug screen. He was, however,
represented by counsel at all stages of the proceedings. The
dispositional hearing was continued to allow petitioner to
meet with his attorney.
of 2017, the circuit court resumed the dispositional hearing
wherein petitioner moved for an improvement period. The DHHR
presented testimony that petitioner tested positive for
methamphetamines, THC, and amphetamines. The DHHR also
presented testimony regarding petitioner's poor attitude
and failure to take responsibility for his actions, including
his failure to acknowledge that his substance abuse affected
his ability to parent his children. Therefore, the DHHR
opposed the granting of an improvement period and moved for
the termination of petitioner's parental rights. The
guardian concurred with the DHHR and argued that petitioner
did not meet his burden of showing that he would fully comply
with an improvement period. The circuit court reaffirmed its
findings of fact and conclusions of law as set forth in the
adjudicatory order and further found insufficient evidence
that petitioner would be likely to fully participate in an
improvement period. Accordingly, the circuit court denied
petitioner's motion for an improvement period. Finally,
the circuit court found there was no reasonable likelihood
that the conditions of abuse and neglect could be
substantially corrected in the near future and found that the
welfare and best interests of the children require
termination of petitioner's parental
rights. It is from the dispositional order that
Court has previously established the following standard of
"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 viewed in its entirety." Syl. Pt. 1, In
Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d
Petitioner argues that the circuit court erred in terminating
his parental rights. However, he fails to adequately brief or
support his argument with any legal authority. "[I]ssues
. . . mentioned only in passing but . . . not supported with
pertinent authority, are not considered on appeal."
State v. Kaufman, 227 W.Va. 537, 555, 711 S.E.2d
607, 625 (2011) (quoting State v. LaRock, 196 W.Va.
294, 302, 470 S.E.2d 613, 621(1996)). "Judges are not
like pigs, hunting for truffles buried in briefs."
State Dep't of Health v. Robert Morris N., 195
W.Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting
United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). Petitioner also fails to make a single citation to
the record to support his argument.
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]the 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). Rule 10(j) of the West Virginia Rules of
Appellate Procedure further provides that "[t]he failure
to file a brief in accordance with this rule may result in
the Supreme Court refusing to consider the case[.]"
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 that set forth
rambling assignments of error that are essentially statements
of facts with a conclusion that the lower tribunal was
'clearly wrong'" are not in compliance with this
Court's rules. Here, petitioner's brief is
inadequate, as it relates ...