                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

                                                                                     FILED
In re R.V.                                                                        June 7, 2019
                                                                               EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
No. 18-0300 (Wood County 17-CIG-2)                                                 OF WEST VIRGINIA




                              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

       1
         Petitioner Aunt has the same initials as the child for whom she seeks to be appointed the
new guardian. By a scheduling order, entered April 9, 2018, this Court deemed the parties’ case
confidential pursuant to Rule 40(e) of the West Virginia Rules of Appellate Procedure and directed
the use of full initials or descriptive terms for the parties and the minor child involved.

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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
        Under the Title 19 waiver program, an in-home aide was provided for the child from four
to seven days a week depending on the aide’s schedule.
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       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.


ISSUED: June 7, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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