Renee Bagley Nunnally v. Dinwiddie Department of Social Services ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
UNPUBLISHED
Argued at Richmond, Virginia
RENEE BAGLEY NUNNALLY
v. Record No. 1947-12-2
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
RENEE BAGLEY NUNNALLY
MEMORANDUM OPINION BY
v. Record No. 1948-12-2 JUDGE WILLIAM G. PETTY
SEPTEMBER 10, 2013
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
TIMOTHY B. NUNNALLY
v. Record No. 1949-12-2
DINWIDDIE DEPARTMENT OF SOCIAL SERVICES
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Pamela S. Baskervill, Judge
George H. Edwards (Law Office of Edwards and Belisle, on brief),
for appellant Renee Bagley Nunnally.
Marlene A. Harris for appellant Timothy B. Nunnally.
Joan M. O’Donnell for appellee.
Sherry L. Gill (Jacobs, Caudill & Gill, on brief), Guardian ad litem
for the infant children.

Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
Renee Bagley Nunnally (“mother”) and Timothy B. Nunnally (“father”) appeal from an
order of the Circuit Court of Dinwiddie County (“circuit court”) terminating their parental
rights.1 On appeal, mother presents three assignments of error: (1) the circuit court erred in
failing to transfer the case to the Citizen Potawatomi Nation District Court, Juvenile Division
(the “tribal court”); (2) the circuit court erred in allowing the testimony of Dr. Arnold Stolberg
and Dinwiddie Department of Social Services (“DSS”) employees prior to rendering its decision
on the motion to transfer; (3) the circuit court erred in allowing testimony from witnesses on
events that occurred before the birth of the twins, who are the subject of the child custody
proceedings below.
On appeal, father presents four assignments of error: (1) the circuit court erred in
denying father’s motion to invalidate pursuant to 25 U.S.C. § 1914; (2) the circuit court erred in
failing to transfer the case to the tribal court; (3) the circuit court erred in using Dr. Stolberg’s
testimony for the purposes of the motion to invalidate and the petitions to terminate parental
rights; (4) the circuit court erred in granting DSS’s petition to terminate parental rights.
Procedurally Defaulted Argument
In his first assignment of error, father argues that the circuit court erred in denying his
motion to invalidate pursuant to 25 U.S.C. § 1914. Father fails to cite even a single principle of
law or authority to support his argument.
“Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,
the argument, and the authorities relating to each question presented.’ Unsupported assertions of
error ‘do not merit appellate consideration.’” Fadness v. Fadness, 52 Va. App. 833, 850, 667
1
Mother and father filed separate appeals. We have consolidated their appeals for the
purposes of oral argument and this opinion.
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S.E.2d 857, 865 (2008) (quoting Jones v. Commonwealth, 51 Va. App. 730, 734, 660 S.E.2d
343, 345 (2008)). Indeed,
“A court of review is entitled to have the issues clearly defined and
to be cited pertinent authority. The appellate court is not a
depository in which the appellant may dump the burden of
argument and research. To ignore such a rule by addressing the
case on the merits would require this court to be an advocate for, as
well as the judge of the correctness of, [appellant’s] position on the
issues he raises. On the other hand, strict compliance with the
rules permits a reviewing court to ascertain the integrity of the
parties’ assertions which is essential to an accurate determination
of the issues raised on appeal.”
Id. (alteration in original) (quoting Jones, 51 Va. App. at 734-35, 660 S.E.2d at 345).
Accordingly, if a party fails to strictly adhere to the requirements of Rule 5A:20(e) and that
failure is significant, then we may treat the assignment of error as waived. Id.
Father failed to provide any legal argument or authority. Because father’s failure to
provide legal argument or authority is significant, he has waived his right to have this assignment
of error reviewed by this Court.
Motion to Transfer
Mother’s first assignment of error and father’s second assignment of error are identical.
Thus, we address them together. In these assignments of error, mother and father argue that the
circuit court erred in considering the best interests of the children in determining whether good
cause existed not to transfer the case to the tribal court. In announcing its finding of good cause
not to transfer, the circuit court referred to “the best interests of the children.” The circuit court
also concluded that the proceedings were at an advanced stage when the motion to transfer was
filed and that the case could not be presented in a tribal court without undue hardship to the
parties or witnesses. Today, however, we have rejected the traditional “best interests of the
child” test in lieu of a more limited test involving an immediate serious emotional or physical
harm, or a substantial risk of such harm, to a child arising from the transfer. Thompson v.
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Fairfax Cnty. Dep’t of Family Servs., ___ Va. App. ___, ___ S.E.2d ___ (Sept. 10, 2013). In
Thompson, we also addressed the advanced stage of the proceedings and undue hardship
components of good cause. We recognize that Thompson is a case of first impression and that
the standards we have announced amount to a middle ground approach to the issue of best
interests of the child. We also recognize that the trial court relied on best interest, advanced
stage, and undue hardship in finding that there was good cause to retain jurisdiction. We cannot
presume that its decision would have been the same in light of our decision in Thompson.
Because of this, we conclude that the circuit court and the parties should be afforded the
opportunity to reconsider this case in light of our newly adopted standards.
II.
For the foregoing reasons, we reverse the circuit court’s decision on the motion to transfer,
vacate the order terminating the parental rights of mother and father, and remand for further
proceedings consistent with our opinion in Thompson, ___ Va. App. ___, ___S.E.2d ___ .2
Reversed, vacated, and remanded.
2
In light of our decision on these assignments of error, we need not address mother’s
assignments of error two and three or father’s assignments of error three and four.
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