                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


                                                                                FILED
In re: D.M., W.P., and M.P.
                                                                           November 22, 2017
                                                                             EDYTHE NASH GAISER, CLERK
No. 17-0567 (Gilmer County 16-JA-31, 16-JA-32, & 16-JA-33)                   SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA



                              MEMORANDUM DECISION
        Petitioner Mother T.P., by counsel Timothy V. Gentilozzi, appeals the Circuit Court of
Gilmer County’s May 22, 2017, order terminating her parental rights to D.M., W.P., and M.P.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”), Shelly DeMarino, filed a response on behalf of the children in support of the circuit
court’s order and a supplemental appendix. On appeal, petitioner argues that the circuit court
erred in terminating her parental rights when she had no knowledge of or control over the
situation that led to the filing of the petition and without first granting her an improvement
period.

        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
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 November of 2016, the DHHR filed an abuse and neglect petition against petitioner
and her boyfriend, C.P. According to the petition, petitioner and C.P. did not have any children
together, but each had children from prior relationships, all of whom resided permanently in the
home or visited the home on a regular basis. The DHHR alleged that petitioner failed to
adequately supervise the children, which resulted in a child’s death. Specifically, two of C.P.’s
sons went next door to their grandfather’s house where one child picked up a loaded rifle and
accidently shot the other child. Both petitioner and C.P. were charged criminally with gross
neglect of a child creating a substantial risk of death or serious bodily injury and child neglect

       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).




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resulting in death. The DHHR filed an amended petition in December of 2016, alleging that
C.P.’s three children had histories of mental illnesses and extreme behavior difficulties and that
petitioner had knowledge of these issues while her children were residing with C.P.’s children in
the home. The DHHR further alleged that the home was filthy, cluttered, and unsafe at the time
the children were staying there.

        An adjudicatory hearing was held on three dates throughout January and February of
2017. The circuit court heard evidence that petitioner knew of the extreme and dangerous
behaviors of C.P.’s children and yet failed to properly supervise them while her biological
children were in her care. Further, evidence was presented that the home was unsafe, as the
children had access to exposed wiring and the children’s medication was not properly
administered. Ultimately, the circuit court adjudicated petitioner as an abusing parent and set the
dispositional hearing.2

       In April of 2017, petitioner underwent a psychological evaluation. According to the
evaluating psychologist, throughout the evaluation, petitioner continued to deny abusing or
neglecting the children. Further, petitioner minimized her drug use and believed she was capable
of good parenting while under the influence. Petitioner stated “I used meth to stay up. I felt like I
was a better parent on it.” At no point throughout the evaluation did petitioner express any
insight or remorse as to how her actions negatively affected the children. The evaluator
concluded that petitioner’s testing results indicated that she was of average intelligence and, as
such, her parenting deficits could not be attributed to lack of cognitive ability. The evaluator
noted that while petitioner indicated during the evaluation that she desired to maintain sobriety,
her underlying personality issues such as irresponsibility, impulsivity, affective instability, anger,
and unstable interpersonal relationships would remain and create a high risk for relapse. Finally,
the evaluator noted that because petitioner failed to accept responsibility for her actions,
attempting to correct her issues would be an exercise in futility. As such, the evaluator concluded
there was no reasonable likelihood that petitioner could correct her issues in the near future.

        Later in April of 2017, the circuit court held a dispositional hearing. The circuit court
heard the testimony of several witnesses, including the evaluating psychologist, petitioner, and
C.P. Thereafter, the circuit court denied petitioner’s motion for a post-adjudicatory improvement
period and terminated her parental rights.3 It is from the May 22, 2017, dispositional order that
petitioner appeals.

       2
         While the parties refer to petitioner as “an abusive and neglectful parent,” we note that
the phrase “neglectful parent” does not appear in the statutory framework for abuse and neglect
proceedings in this State. Instead, West Virginia Code § 49-1-201 defines “abusing parent” as “a
parent . . . whose conduct has been adjudicated by the court to constitute child abuse or neglect
as alleged in the petition charging child abuse or neglect.” (Emphasis added.) As such, the Court
will refer to petitioner as an “abusing parent” in this memorandum decision, as that phrase
encompasses parents who have been adjudicated of abuse and/or neglect.
       3
        In addition to the termination of petitioner’s parental rights, W.P.’s father voluntarily
relinquished his parental rights. The father of D.M. and M.P. is currently completing an

                                                                                      (continued . . . )

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       This 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
       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).

        As an initial matter, we note that in her brief before this Court, petitioner failed to include
a table of authorities, to include a standard of review, to cite to a single case in support of her
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

improvement period, as an amended petition was filed against him after he allowed the children
to have contact with petitioner. According to the DHHR, the permanency plan is for D.M. and
M.P. to be reunited with their father and for their father to adopt W.P. after the successful
completion of his improvement period. The concurrent permanency plan is adoption of the
children by an aunt.



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. . .’ 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 United States 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 woefully 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.

        Secondly, because the circuit court’s proceedings regarding D.M. and M.P.’s father are
still ongoing, this Court reminds the circuit court of its duty to establish permanency for the
children. Rule 39(b) of the Rules of Procedure for Child Abuse and Neglect Proceedings
requires:

       At least once every three months until permanent placement is achieved as
       defined in Rule 6, the court shall conduct a permanent placement review
       conference, requiring the multidisciplinary treatment team to attend and report as
       to progress and development in the case, for the purpose of reviewing the progress
       in the permanent placement of the child.

       Further, this Court reminds the circuit court of its duty pursuant to Rule 43 of the Rules
of Procedure for Child Abuse and Neglect Proceedings to find permanent placement for the
children within twelve months of the date of the disposition order. As this Court has stated,

               [t]he [twelve]-month period provided in Rule 43 of the West Virginia
       Rules of Procedures for Child Abuse and Neglect Proceedings for permanent
       placement of an abused and neglected child following the final dispositional order
       must be strictly followed except in the most extraordinary circumstances which
       are fully substantiated in the record.

In re Cecil T., 228 W.Va. at 91, 717 S.E.2d at 875, Syl. Pt. 6. Moreover, this Court has held that

               [i]n determining the appropriate permanent out-of-home placement of a
       child under W.Va.Code § 49-6-5(a)(6) [1996] [now West Virginia Code § 49-4­
       604(b)(6)], the circuit court shall give priority to securing a suitable adoptive
       home for the child and shall consider other placement alternatives, including
       permanent foster care, only where the court finds that adoption would not provide
       custody, care, commitment, nurturing and discipline consistent with the child’s
       best interests or where a suitable adoptive home can not be found.

Syl. Pt. 3, State v. Michael M., 202 W.Va. 350, 504 S.E.2d 177 (1998). Finally, “[t]he guardian
ad litem’s role in abuse and neglect proceedings does not actually cease until such time as the
child is placed in a permanent home.” Syl. Pt. 5, James M. v. Maynard, 185 W.Va. 648, 408
S.E.2d 400 (1991).


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      For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 22, 2017, order is hereby affirmed.


                                                                                     Affirmed.

ISSUED: November 22, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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