In re R.G. ( 2022 )

FILED
March 17, 2022
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
In re R.G.
No. 20-0971 (Kanawha County 20-AF-7)
MEMORANDUM DECISION
Petitioner K.G., by counsel Michael M. Cary, appeals the Circuit Court of Kanawha
County’s November 4, 2020, order denying her motion to reconsider the order denying contact
between petitioner and R.G. 1 The West Virginia Department of Health and Human Resources
(“DHHR”), by counsel Patrick Morrisey and William P. Jones, filed a response in support of the
circuit court’s order. The guardian ad litem (“guardian”), Elizabeth G. Kavitz, filed a response on
behalf of R.G. also in support of the circuit court’s order. On appeal, petitioner argues that the
circuit court erred in denying her motion to reconsider and prohibiting contact between petitioner
and R.G.
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.
This case centers around R.G., an elderly individual who was deemed incapacitated by a
licensed physician as a result of cognitive defects due to dementia. R.G. was placed at Valley
Center, a long-term care facility that provides nursing care and assistance with daily living. After
R.G. was placed at Valley Center, personnel contacted petitioner, R.G.’s sister, in an effort to apply
for Medicaid assistance to help R.G. pay for the cost of care at Valley Center. Petitioner was not
responsive to Valley Center’s request for assistance and, as such, Valley Center filed a petition for
the appointment of a guardian and/or conservator. The circuit court appointed R.G. a guardian on
February 10, 2020.
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).
1
During the guardian’s investigation, she discovered that R.G.’s bank account also listed
petitioner on the account, and the bank statements indicated many withdrawals from petitioner.
These withdrawals totaled more than $15,000, and petitioner was unable to account for the
spending or explain how the money was used for R.G.’s benefit while he was living at Valley
Center. On March 20, 2020, the guardian filed a Petition for a Temporary Exploitation Protective
Order on behalf of R.G. That same day, the magistrate court granted the protective order, finding
that petitioner was the victim of financial exploitation and ordered petitioner to submit a written
accounting of the disposition of R.G.’s income or other resources to the circuit court within twenty
days. The magistrate court also prohibited petitioner from visiting R.G. at Valley Center.
Thereafter, the circuit court entered a scheduling order in the matter.
The circuit court held a hearing on May 14, 2020, for the purpose of reviewing the
temporary protective order issued by the magistrate court. Petitioner failed to appear, and
seemingly failed to file a written accounting of R.G.’s financial income and resources as previously
ordered. The administrator of Valley Center testified to R.G.’s health and stated that petitioner
failed to timely assist with applying for Medicaid benefits for R.G., resulting in Valley Center
filing a guardianship/conservatorship action on R.G.’s behalf. The administrator testified that
petitioner ultimately provided bank statements showing deposits of funds attributable to R.G.’s
income but could not account for any withdrawals made from R.G.’s account and never provided
any documentation showing that the withdrawn funds were used for R.G.’s benefit. The
administrator noted the withdrawals totaled over $15,000. Following this testimony, the guardian
moved the circuit court for entry of a permanent protective order against petitioner. The guardian
further requested that petitioner be ordered to provide accounting and receipts, that R.G.’s accounts
be frozen, and that the Kanawha County Sherriff be appointed as conservator for R.G., among
other things.
After hearing testimony, the circuit court found that R.G. suffered from dementia and was
a protected person due to his age and condition. The circuit court further found that R.G.’s income
was directly deposited into accounts held jointly with petitioner, that petitioner failed to assist
Valley Center in obtaining Medicaid assistance for petitioner, and that she failed to account for the
withdrawals made from the accounts. Ultimately, the circuit court found that petitioner “committed
financial exploitation by misappropriation of the funds of [R.G.], a protected person.”
Accordingly, the circuit court entered a permanent protection order against petitioner and further
ordered that she have no contact with R.G. The circuit court directed petitioner to provide an
accounting and receipts for all withdrawals from R.G.’s accounts within thirty days. The circuit
court memorialized its findings by order entered on May 22, 2020.
In October of 2020, petitioner filed a “motion to reconsider to allow contact” with R.G.
Petitioner argued that she and R.G. were biological siblings who had a significant emotional and
psychological bond and requested that she be permitted to visit R.G. “inasmuch she will no longer
be permitted to make any financial, medical, or legal decisions on his behalf.” By order entered on
November 4, 2020, the circuit court denied petitioner’s motion to reconsider “for reasons apparent
upon the record.”
In Syllabus Point one of In Re Robinette, 218 W.Va. 186, 624 S.E.2d 533 (2005), we set
forth the applicable standard of review:
2
When this Court reviews challenges to the findings and conclusions of the
circuit court, a two-prong deferential standard of review is applied. We review the
final order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings under a clearly erroneous
standard.
(quotations and citations omitted). We further note that “[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.” Syllabus Point 4, Vanderpool v. Hunt, 241 W. Va. 254, 823 S.E.2d 526 (2019)
(citation omitted). 2
On appeal, petitioner argues that the circuit court erred in denying her motion to reconsider
and in prohibiting contact between petitioner and R.G. According to petitioner, adequate
protections are in place to ensure that R.G.’s financial interests are protected, and the no-contact
provision is overly punitive in nature. Petitioner contends that the no-contact order does not serve
R.G.’s best interests “and seemingly is a life sentence for the Petitioner.” Petitioner argues that the
circuit court did not consider the life-long bond between petitioner and R.G. or petitioner’s many
efforts to show love to R.G. by cooking him meals, buying him things, and visiting him for
holidays. Petitioner claims that she provides emotional and psychological support to R.G. and that
she has a “profound effect on his well-being.” Petitioner acknowledges that the restrictions to
R.G.’s finances are appropriate; however, she argues that the circuit court “should have allowed
for the preservation of the sibling bond to continue.”
Petitioner fails to demonstrate that the circuit court abused its discretion in prohibiting
contact with R.G. Below, petitioner failed to provide documentation regarding R.G.’s accounts to
either Valley Center or the guardian and failed to provide any accounting for the withdrawals made
from R.G.’s account. Petitioner never appeared during the proceedings below and never presented
any evidence in her defense. The circuit court found that petitioner financially exploited R.G.,
entered a permanent protective order against her, and ordered her to provide an accounting of
2
In filing her “motion to reconsider,” petitioner failed to indicate under which rule she was
filing her motion. According to Syllabus Point two of Powderidge Unit Owners Ass’n v. Highland
Properties, Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996),
[w]hen a party filing a motion for reconsideration does not indicate under which
West Virginia Rule of Civil Procedure it is filing the motion, the motion will be
considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule
60(b) motion for relief from a judgment order. If the motion is filed within ten days
of the circuit court’s entry of judgment, the motion is treated as a motion to alter or
amend under Rule 59(e). If the motion is filed outside the ten-day limit, it can only
be addressed under Rule 60(b).
Here, petitioner’s motion was filed outside the ten-day-limit and will be addressed as having been
filed under Rule 60(b).
3
R.G.’s accounts. To date, petitioner has not provided an accounting of the withdrawals made from
R.G.’s account. Given R.G.’s designation as incapacitated and a protected person, coupled with
petitioner’s financial exploitation of him, the circuit court prohibited continued contact between
petitioner and R.G. While petitioner argues that she and R.G. shared a strong bond, petitioner fails
to cite to the record to demonstrate that she established the existence of a strong bond, nor does
she cite to any authority in support of her argument that the circuit court should make reasonable
efforts to preserve an adult sibling relationship. To the contrary, Rule 21 of the West Virginia
Rules of Practice and Procedure for Financial Exploitation Proceedings provides that a permanent
protective order may “grant any . . . relief the court deems appropriate.” Given the record before
us, we cannot find that the circuit court abused its discretion in prohibiting further contact between
petitioner and R.G. Petitioner is entitled to no relief.
For the foregoing reasons, we find no error in the decision of the circuit court, and its
November 4, 2020, order is hereby affirmed.
Affirmed.
ISSUED: March 17, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice William R. Wooton
Justice Alan D. Moats sitting by temporary assignment
DISSENTING:
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Walker and Justice Armstead dissenting and writing separately.
The majority affirms the circuit court’s order without analyzing the controlling statutes.
We dissent for two reasons. First, we would schedule this case for argument under Rule 20 of the
West Virginia Rules of Appellate Procedure to resolve an apparent conflict in West Virginia Code
§§ 55-7J-1 through -6 (2019), which governs financial exploitation of elderly persons. Second,
either way we resolve the conflict, the circuit court exceeded its statutory authority by imposing
the no-contact condition in its financial exploitation protective order.
4
West Virginia Code § 55-7J-1provides, in relevant part:
(e) . . . . After a hearing, the circuit court may issue a permanent
protective order containing any relief the circuit court determines
necessary to protect the alleged victim if the court finds by a
preponderance of the evidence that
(1) The respondent has committed an act against the victim
that constitutes financial exploitation; and
(2) There is reasonable cause to believe continued financial
exploitation will occur unless relief is granted . . . . 1
But West Virginia Code § 55-7J-3 lists “[c]ourt authorized remedies” as follows:
(a) In an action brought against a person under this article upon a
finding that an elderly person, protected person or incapacitated
adult has been financially exploited, the court may order:
(1) The return of property or assets improperly obtained,
controlled or used; and
(2) An award of actual damages to the person who brought
the action for any damages incurred or for the value of the
property or assets lost as a result of the violation or violations
of this article.
(b) In addition to the remedies provided in subsection (a) of this
section, a court may order the following:
(1) For violations committed by a person who is not in a
position of trust and confidence, payment of two times the
amount of damages incurred or value of property or assets
lost; and
(2) For violations committed by a person in a position of
trust and confidence, payment of treble damages.
It is not clear whether the list of authorized remedies limits circuit courts’ issuance of “any
relief . . . necessary.” If it does, the circuit court exceeded its authority because the Legislature did
not include a no-contact order as an authorized remedy.
But if the list of authorized remedies does not limit the relief circuit courts can provide
under § 55-7J-1(e), we find the no-contact condition overly restrictive and unnecessary to remedy
R.G.’s financial exploitation. The circuit court found only that the petitioner impermissibly
1
Emphasis added.
5
withdrew money from R.G.’s accounts and failed to timely respond to the nursing home’s requests,
appear for the circuit court hearing, or account for the withdrawals. The improper withdrawals are
the only facts on which the finding of financial exploitation is based, and barring the petitioner’s
access to the accounts or any of R.G.’s other assets were the only conditions necessary to prevent
it from happening again. The circuit court made no findings that the petitioner would continue to
financially exploit R.G. without the no-contact condition, so its findings do not satisfy § 55-7J-
1(e)(2).
The majority cites Rule 21(a)(6) of the West Virginia Rules of Practice and Procedure for
Financial Exploitation Civil Proceedings for the proposition that it authorized the circuit court to
impose the no-contact condition since the rule says circuit courts may “grant . . . any relief the
court deems appropriate.” But if § 55-7J-3 limited the circuit court to the list of authorized
remedies, the list needed to include a no-contact condition for it to be appropriate. And if not
limited by the list of remedies, under § 55-7J-19(e), the relief needed to be necessary to be
appropriate. So the Rule does not give circuit courts unfettered discretion as the majority implies.
This case should have been placed on the argument docket for this Court to determine
whether the statute authorizes no-contact conditions in permanent financial exploitation protective
orders, and, if so, whether the circuit court acted within its discretion by deeming it necessary in
this case.
6