                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS
                                                                                  FILED
In re: S.H.,                                                                   April 12, 2016
An Alleged Protected Person                                                    RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
No. 15-0626 (Mercer County 13-G-8)


                              MEMORANDUM DECISION
        Petitioner S.H., by counsel David B. Kelley, appeals the Circuit Court of Mercer
County’s June 5, 2015, order denying her motion for relief from judgment under Rule 60(b) of
the West Virginia Rules of Civil Procedure.1 The West Virginia Department of Health and
Human Resources (“DHHR”), by counsel C. Carter Williams, filed its response in support of the
circuit court’s order and a supplemental appendix. On appeal, petitioner alleges that the circuit
court erred in denying her motion because she wishes to be returned to her mother’s care.

        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 January of 2013, the DHHR filed a petition for appointment of a guardian/conservator
on petitioner’s behalf. The petition was supported by an evaluation by psychologist Chester T.
Frethiem, which indicated that petitioner was readmitted to Princeton Community Hospital on
January 24, 2013, because of a decline in her medical condition that was partly attributable to the
fact that petitioner and her mother did not follow up with medical care after petitioner’s previous
hospitalization. Two months prior, petitioner was admitted to the hospital and diagnosed with a
urinary tract infection, decubitus ulcers, and superimposed infection. Petitioner was treated and
returned to her mother’s care, but no follow up occurred until her hospitalization in January of
2013. At the time of her readmission, petitioner presented with an upper respiratory infection,
pneumonia, sepsis, left side pneumothorax, dehydration, multiple decubitus ulcers, MRSA, a
lower-extremity deep vein thrombosis, and a history of multiple sclerosis. Petitioner was
admitted to the ICU and she required a peripherally inserted central catheter line for the
administration of long-term antibiotics. According to the DHHR’s petition, petitioner refused
medical care and treatment recommended by the hospital internist, Dr. Yoginder Yadav.

       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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According to Dr. Frethiem, petitioner suffered from dementia associated with multiple sclerosis,
which resulted in a severe impairment of her higher level cognitive functions. Dr. Frethiem also
noted that petitioner, with her mother’s support, refused important aspects of her medical care,
and further that petitioner’s mother “does not appear capable of understanding [petitioner’s]
medical condition or ensuring that she gets proper care.” As such, Dr. Frethiem opined that
petitioner lacked capacity and was in need of a guardian and conservator. Dr. Yadav also
completed an evaluation based upon his examinations and determined that petitioner lacked
capacity and required the appointment of a guardian and conservator. Dr. Yadav also determined
that petitioner required twenty-four hour, skilled nursing care to manage her health issues and
physical therapy. Based upon their observations, both doctors determined that petitioner lacked
insight into her medical conditions and was not competent to make her own medical decisions.
By order entered on January 29, 2013, the circuit court appointed the DHHR as petitioner’s
temporary guardian and the Sheriff of Mercer County as petitioner’s temporary conservator.

         The mental hygiene commissioner held a final hearing on the DHHR’s petition in
February of 2013. According to testimony from a DHHR employee, petitioner’s mother brought
her by bus to the hospital in January of 2013 in critical condition. Additionally, petitioner
presented with sixteen bed sores, was in need of a chest tube as a result of a pneumothorax
derived from a central line being put in place, and her clothes were soaked in urine. The DHHR
worker further testified that both petitioner and her mother refused to permit staff to change
petitioner’s clothes, change the dressing on her bed sores, or insert the chest tube. Despite clear
testimony regarding petitioner’s diagnosis upon admission, petitioner’s mother testified that the
bed sores were the result of petitioner’s prior hospitalization. Both petitioner and her mother
testified that they did not need assistance with petitioner’s care and that petitioner was capable of
making her own decisions. Ultimately, by order entered on February 21, 2013, the circuit court
appointed the DHHR as a limited guardian for petitioner and deemed a conservator unnecessary
due to petitioner’s only income being derived from monthly government benefits.

        The mental hygiene commissioner held a review hearing in May of 2013. During the
hearing, a representative of Mercer Nursing and Rehabilitation (“facility”) testified that when
petitioner arrived at the facility, she had eighteen bed sores. According to the employee, at the
time of the hearing, petitioner still had ten bed sores that had not yet healed. Testimony further
established that petitioner had three very serious infections in a number of the wounds that would
take several weeks to resolve. This employee also testified that petitioner did well during a short
period when her mother’s visits were suspended, but that after visitation resumed, petitioner
refused to get up or eat. Ultimately, the facility had to utilize a feeding tube to supply petitioner
nutrition. At the conclusion of this hearing, the circuit court appointed the DHHR as a full
guardian for petitioner.

        The DHHR filed a periodic report in February of 2014, and noted that petitioner
continued to require a guardian because of her risk of falling, the nature and extent of her
pressure ulcers and future ulcer development, decrease of mobility, bowel incontinence, poor
oral intake, nutritional problems, and the presence of a feeding tube. The DHHR also indicated
petitioner’s mother interfered with petitioner’s medical treatment and that petitioner followed the
mother’s directions instead of the staff’s. Specifically, the DHHR reported that when petitioner’s
mother was present, petitioner refused to do anything but lie in bed.

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        In August of 2014, petitioner filed a petition to terminate the guardianship and argued
that she was no longer in need of a guardian. In September of 2014, the mental hygiene
commissioner held a hearing on the issue, during which petitioner testified that the DHHR
limited her contact with her mother to thirty minutes by phone daily and visitation three days
weekly for two hours and forty-five minutes. Testimony from employees of the DHHR and the
facility established that the phone call restriction was necessary because petitioner’s mother
attempted to make as many as forty-five phone calls to petitioner each day. Eventually, staff
made special arrangements to take the phone to petitioner at a specific time every day so that she
could talk to her mother for thirty minutes. Testimony established that the time limit was
necessary since all residents share one phone. Testimony also established that petitioner’s mother
once had unlimited visitation with petitioner, but that her disruption of petitioner’s services
necessitated a visitation schedule. This included the mother interfering with petitioner’s eating,
medicine administration, and disruption of other activities. According to additional testimony,
petitioner’s mother would come to the facility and obtain petitioner’s money, but would then fail
to purchase requested items. The facility remedied this situation by preventing petitioner’s
mother from accessing her account and having the facility’s activity department purchase the
items petitioner wanted from a list she prepared. According to testimony, petitioner’s mother
once came to the facility, took items the facility purchased for petitioner, and attempted to return
them to Wal-Mart for cash. At the conclusion of this hearing, the mental hygiene commissioner
ordered the DHHR remain petitioner’s guardian. Also, at the request of petitioner’s facility, the
commissioner ordered that petitioner undergo an additional psychological evaluation.

        In December of 2014, the mental hygiene commissioner held a hearing on the petition to
terminate guardianship, during which petitioner again testified that she wished to be in control of
her medical decisions and that she believed her mother could take care of her. Petitioner
indicated that she would remain in the facility until her wounds healed and that her mother
secured a sufficient place for her to live. Personnel from petitioner’s facility also testified as to
the care petitioner required. This included crushing certain of petitioner’s medications and
administering them through a feeding tube; changing petitioner several times per day; cleaning
petitioner’s wounds and dressing them daily; and turning petitioner every two hours, among
other requirements. Personnel also testified about continued problems with petitioner’s mother
interfering with petitioner’s care. According to testimony, petitioner’s mother scheduled an
appointment with a physician to have petitioner’s feeding tube removed. However, the facility’s
physician intervened and cancelled the surgery. Testimony also established that petitioner
weighed 77 pounds when she arrived at the facility, but weighed 138 pounds as of the date of the
hearing. According to one staff member, petitioner’s mother was not capable of taking care of
petitioner, as evidenced by the fact that she tried to convince petitioner not to take her medicine
or eat. The DHHR concurred with this opinion. At the conclusion of this hearing, the DHHR was
ordered to remain as guardian for petitioner, but to transition petitioner back into her mother’s
home. Petitioner’s mother was ordered to cooperate with and allow any outside agency worker
into the home at any time and to abide by all of the doctor’s orders regarding medication,
petitioner’s feeding tube, and other medical opinions.

       In March of 2015, the mental hygiene commissioner held a final hearing on the petition
to terminate guardianship, during which personnel from petitioner’s facility testified as to the

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mother’s training. According to testimony, petitioner still had a stage four pressure wound that
had to be cleaned and dressed twice a day. Facility employees testified that petitioner’s mother
stated that she could not properly clean and dress this wound and was reluctant to participate in
training. A facility employee also testified to concerns that the mother would not comply with
the prescribed care for petitioner, including a concern that the mother would not turn petitioner to
alleviate the pressure sores if petitioner requested. Staff also testified that the mother did not
want petitioner to have a feeding tube, having remarked that petitioner was “getting fat,” and that
petitioner would deteriorate without the tube. Ultimately, the mental hygiene commissioner
found that petitioner was unable to exercise the essential requirements for her health, care,
safety, habitation, or therapeutic needs without the existence of a guardian. The commissioner
also ultimately decided that the mother could not care for petitioner in her home. The resulting
order directed the DHHR to remain as petitioner’s guardian and noted that the guardian’s powers
did not extend beyond what was absolutely necessary for petitioner’s protection. The circuit
court entered this final order on March 27, 2015. Petitioner did not appeal this order to this
Court.

        In April of 2015, petitioner filed a petition for appeal in the circuit court challenging the
circuit court’s March 27, 2015, order. The circuit court noted, however, that it cannot hear an
appeal of its own order. As such, the circuit court treated the petition as a motion for relief from
judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure because the petition
was filed thirty days after the entry of the order at issue. In June of 2015, the circuit court held a
hearing on the motion for relief from judgment and ultimately denied petitioner relief. It is from
this order that petitioner appeals.

       The Court has previously established the following standard of review:

               “A motion to vacate a judgment made pursuant to Rule 60(b),
       W.Va.R.C.P., is addressed to the sound discretion of the court and the court’s
       ruling on such motion will not be disturbed on appeal unless there is a showing of
       an abuse of such discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W.Va. 778, 204
       S.E.2d 85 (1974).

Syl. Pt. 4, Rose v. Thomas Memorial Hosp. Found., Inc., 208 W.Va. 406, 541 S.E.2d 1 (2000).
Moreover, we have held that

               “[i]n reviewing an order denying a motion under Rule 60(b),
       W.Va.R.C.P., the function of the appellate court is limited to deciding whether the
       trial court abused its discretion in ruling that sufficient grounds for disturbing the
       finality of the judgment were not shown in a timely manner.” Syl. Pt. 4, Toler v.
       Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974).

Id. at 408, 541 S.E.2d at 3, Syl. Pt. 3. Finally, “‘[a]n appeal of the denial of a Rule 60(b) motion
brings to consideration for review only the order of denial itself and not the substance supporting
the underlying judgment nor the final judgment order.’ Syl. Pt. 3, Toler v. Shelton, 157 W.Va.
778, 204 S.E.2d 85 (1974).” Id. at 407, 541 S.E.2d at 2, Syl. Pt. 2. Upon our review, the Court
finds no error in the circuit court denying petitioner’s motion for relief from judgment.

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        Pursuant to Rule 60(b) of the West Virginia Rules of Civil Procedure, a party may move
for relief from a judgment for one of several reasons, including, but not limited to, mistake,
inadvertence, excusable neglect, unavoidable cause, newly discovered evidence, or fraud. On
appeal to this Court, however, petitioner does not assert that the circuit court erred in denying her
motion for relief from judgment because of the presence of any specific factor set forth in this
rule. Instead, she argues in support of her assertion that the circuit court erred in allowing the
DHHR to continue as her legal guardian by order entered on March 27, 2015, which order is not
currently on appeal. Further, the record is clear that the circuit court did not abuse its discretion
in denying petitioner’s motion for relief from judgment because petitioner provided no evidence
that she was entitled to such relief under the specific circumstances set forth in Rule 60(b).
Instead, petitioner simply sought to relitigate the issue of whether she required a guardian to
ensure she received proper medical care.

       In addressing Rule 60(b) motions, this Court has stated that

              “[i]n establishing the bounds of such motion, the weight of authority
       supports the view that Rule 60(b) motions which seek merely to relitigate legal
       issues heard at the underlying proceeding are without merit.” Powderidge Unit
       Owners Ass’n v. Highland Properties, Ltd., 196 W.Va. 692, 705, 474 S.E.2d 872,
       885 (1996).

Id. at 414, 541 S.E.2d at 9. In support of her Rule 60(b) motion, petitioner simply realleged that
she was capable of making her own medical decisions and that her mother was able to care for
her. However, petitioner also alleged that her lawyer and the circuit court lied to her in that, at a
prior hearing, the circuit court ordered a gradual transition back into her mother’s home, while at
the final hearing the circuit court ordered that the DHHR remain petitioner’s guardian. This
allegation, however, does not arise to fraud or mistake as contemplated by Rule 60(b). Instead, it
is clear that the circuit court initially sought to honor petitioner’s wishes but was unable to
ultimately provide for petitioner’s return to her mother’s home because of issues that arose
during the mother’s training in the proper care for petitioner. As such, we find no abuse of
discretion in the circuit court denying petitioner’s motion for relief from judgment.

        For the foregoing reasons, we find no error in the decision of the circuit court, and its
June 5, 2015, order is hereby affirmed.


                                                                                          Affirmed.

ISSUED: April 12, 2016


CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis

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Justice Brent D. Benjamin

Justice Margaret L. Workman

Justice Allen H. Loughry II





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