Wood
County 17-CIG-2
MEMORANDUM DECISION
Petitioner
R.V. ("Petitioner Aunt"), [1] pro se, appeals the March 5,
2018, order of the Circuit Court of Wood County denying her
petition to be appointed the new guardian for the minor
child, R.V.; and directing the parties to submit proposed
visitation schedules. Respondent L.V. ("Respondent
Grandmother"), pro se, filed no response. Respondent
West Virginia Department of Health and Human Resources
("DHHR"), by counsel Mindy M. Parsley, and the
child's guardian ad litem ("GAL"), Attorney
Katrina M. Christ, each filed a response in support of the
circuit court's order. Petitioner Aunt filed a separate
reply to each response.
The
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 that there is no final appealable order in
this case. For these reasons, a memorandum decision
dismissing the appeal for a lack of jurisdiction and
remanding this case to the circuit court for further
proceedings is appropriate under Rule 21 of the Rules of
Appellate Procedure.
R.V. is
eight years old and has special needs. Respondent Grandmother
has served as the child's guardian since 2011. In
November of 2016, the DHHR received a referral regarding the
child because of arguing between Petitioner Aunt and
Respondent Grandmother inside the home they shared with the
child. Subsequently, Petitioner Aunt moved out of the home
and filed a petition in the Circuit Court of Wood County on
January 17, 2017, seeking the removal of Respondent
Grandmother as the child's guardian and Petitioner
Aunt's appointment as the new guardian. The circuit court
held the first hearing in the case on January 23, 2017, and
noted that, with Petitioner Aunt no longer residing in the
same home, the reason for the referral to the DHHR no longer
existed. Also, the DHHR recommended that, while Respondent
Grandmother suffered from health problems, she remained a
suitable person to have guardianship of the child. The DHHR
noted that Respondent Grandmother began receiving help with
the child following the child's acceptance into the Title
19 waiver program. Given the receipt of Title 19 services,
[2] the
circuit court found that Respondent Grandmother should remain
the child's guardian during the pendency of Petitioner
Aunt's petition. Petitioner Aunt sought visitation with
the child, but the circuit court denied the request based on
Respondent Grandmother's objection to the same. The
circuit court appointed a GAL for the child.
The
GAL's appointment was considered at a March 7, 2017,
hearing, at which the parties waived a potential conflict of
interest. Once the GAL's appointment was confirmed, the
GAL recommended that Petitioner Aunt be given visitation with
the child so that the GAL could observe the child with
Petitioner Aunt and also observe him with Respondent
Grandmother. Accordingly, the circuit court granted
Petitioner Aunt four hours of visitation with the child per
week. The record reflects that Respondent Grandmother
subsequently allowed Petitioner Aunt to have additional time
with the child over and above the four hours of visitation
awarded by the circuit court.
The GAL
presented her report at a January 10, 2018, hearing. The GAL
recommended that the circuit court deny Petitioner Aunt's
petition to remove Respondent Grandmother as the child's
guardian. The GAL noted that the DHHR's position that it
remained important "to facilitate a relationship with
[Petitioner Aunt]," but opined that whether Petitioner
Aunt's visitation with the child should continue was in
the circuit court's discretion. Petitioner Aunt requested
that the circuit court set a new visitation schedule and
provide her "a lot more than the four hours" per
week with the child. The circuit court directed Petitioner
Aunt and Respondent Grandmother to submit proposed visitation
schedules for the GAL to evaluate in a supplemental report,
informing the parties that it was "look[ing] forward to
see[ing] what's in the best interests for [the
child]" and that they would "go from there."
In an order entered March 5, 2018, the circuit court (1)
denied Petitioner Aunt's petition to be appointed the new
guardian for the minor child; and (2) directed the parties to
submit proposed visitation schedules for the GAL to evaluate,
after which "the [c]ourt will then issue an
ORDER taking into account all the
above." Petitioner Aunt submitted a proposed visitation
schedule to the GAL, which the GAL evaluated in a report
filed with the circuit court on March 5, 2018. The circuit
court did not act on the GAL's supplemental report prior
to Petitioner Aunt's April 4, 2018, appeal of the circuit
court's March 5, 2018, order.
In
Syllabus Points 1, 2, and 3 of James M.B. v. Carolyn
M., 193 W.Va. 289, 456 S.E.2d 16 (1995), we held:
1. A court of limited appellate jurisdiction is obliged to
examine its own power to hear a particular case. This
Court's jurisdictional authority is either endowed by the
West Virginia Constitution or conferred by the West Virginia
Legislature. Therefore, this Court has a responsibility
sua sponte to examine the basis of its own
jurisdiction.
2. Where neither party to an appeal raises, briefs, or argues
a jurisdictional question presented, this Court has the
inherent power and duty to determine unilaterally its
authority to hear a particular case. Parties cannot confer
jurisdiction on this Court directly or indirectly where it is
otherwise lacking.
3. Under [West Virginia Code §] 58-5-1 (1925), appeals
only may be taken from final decisions of a circuit court. A
case is final only when it terminates the litigation between
the parties on the merits of the case and leaves nothing to
be done but to enforce by execution what has been determined.
On
appeal, no party addresses the direction in the circuit
court's March 5, 2018, order that Petitioner Aunt and
Respondent Grandmother submit proposed visitation for the GAL
to evaluate, after which the court noted that it would issue
an order taking such information into account. Based on our
review of the record, we find that the issue of Petitioner
Aunt's visitation with the child was first raised at the
January 23, 2017, hearing and was awarded at the March 7,
2017, hearing. At the January 10, 2018, hearing, Petitioner
Aunt requested that the circuit court set a new visitation
schedule and provide her "a lot more than the four
hours" per week with the child. In directing the parties
to submit proposed visitation schedules for the GAL to
evaluate in a supplemental report, the circuit court stated
that it was "look[ing] forward to see[ing] what's in
the best interests for [the child]" and that they would
"go from there." Therefore, we find that the
circuit court's March 5, 2018, order leaves something
more to be done in that the court still needs to decide the
issue of Petitioner Aunt's continued visitation with the
child. Because the March 5, 2018, order is not a final
appealable order, we dismiss Petitioner Aunt's appeal for
a lack of jurisdiction and remand this case to the circuit
court for further proceedings.
Dismissed
and Remanded.
CONCURRED IN BY: Chief Justice Elizabeth D. Walker, Justice
Margaret L. Workman, Justice Tim Armstead, Justice Evan ...