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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

In re R.V.

No. 18-0300 (Wood County 17-CIG-2)

MEMORANDUM DECISION

Petitioner R.V. (“Petitioner Aunt”),

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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 

 

1Petitioner 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. 

FILED

June 7, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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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,2the 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.

 

2Under 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