In re: M.A.G., a minor

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
May 1, 2026
IN RE: M.A.G., a minor ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
No. 25-ICA-475 (Fam. Ct. Berkeley Cnty. Case No. FC-02-2025-FIG-13)

MEMORANDUM DECISION

Petitioner Osvaldo G.1 (“Uncle”) appeals the Family Court of Berkeley County’s
November 7, 2025, order denying his motion for reconsideration of the court’s September
25, 2025, uncontested2 Order of Appointment of Minor Guardian.3

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the West Virginia Rules of Appellate Procedure.

On July 2, 2025, the paternal Uncle of the minor child, M.A.G., filed a petition for
guardianship requesting that the family court appoint him as M.A.G.’s legal guardian.4

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
No other parties participated in this matter; M.A.G.’s biological parents were
deceased prior to the filing of Uncle’s petition.
3
Uncle is represented by Taylor E. Smith, Esq., Lesley D. Yost, Esq., and qualified
student attorneys under Rule 10 of the West Virginia Rules for Admission to the Practice
of Law, Christina Houston and Taylor Cochran, appearing under the supervision and
consent of Lesley D. Yost, and through West Virginia University’s Immigration Law
Clinical Program.
4
M.A.G. was born in Juarez City, Mexico, in May of 2008. According to M.A.G.’s
May 20, 2025, notarized sworn statement, his father was murdered when M.A.G. was five
months old. M.A.G. lived with his mother for the first nine years of his life. He stated that
his mother spent all her money on drugs, so he was often hungry and neglected. His mother
sent him and his siblings to live with his grandmother’s friend in Oaxaca, Mexico, when
he was nine. His mother only visited them three times while he resided there and never
provided any material or financial support, but his grandmother sent the friend money for

1
Uncle also filed a motion seeking the entry of an order containing specific findings due to
the child’s citizenship status and a memorandum of points and authorities in support of the
motion. In this motion, Uncle alleged that M.A.G. could not return to Mexico because
M.A.G.’s father was deceased, and his mother, who had abandoned him, was now also
deceased.5 The specific findings Uncle requested would enable M.A.G. to petition the
United States Citizenship and Immigration Services (“USCIS”) for Special Immigrant
Juvenile Status (“SIJS”) pursuant to Section 1101(a)(27)(J) (2023) of the Immigration and
Nationality Act.6 Uncle asserted that the child was seeking relief from removal from the
United States by applying for SIJS and could apply for lawful permanent residency if the
USCIS approved his SIJS application. See 8 U.S.C. § 1255(a), (h) (2022). Uncle’s petition
for guardianship maintained that the child’s only family resided in Berkeley County, West
Virginia, and there was no individual willing to provide care for him in Mexico.

On September 25, 2025, the family court held a final hearing on Uncle’s petition for
guardianship. Uncle testified that M.A.G. had resided with him for approximately one year
and was enrolled in Hedgesville High School. During the hearing, the court orally informed
Uncle that his petition for guardianship would be granted. Counsel for Uncle then orally
moved the court to include the requested specific findings in its order so that M.A.G. could
petition the USCIS for SIJS.

food and clothes. In September of 2024, he traveled from Mexico to the United States with
his older brother to live with Uncle and his grandmother. Upon entering the United States,
M.A.G. was held at an Office of Refugee Resettlement shelter and released to Uncle in
October of 2024. M.A.G. has lived with Uncle since October of 2024 and states that he has
a good life, feels loved and cared for, and wants to continue living with Uncle as his
guardian.
5
M.A.G.’s mother died after he arrived in the United States. Uncle filed the death
certificates of M.A.G.’s parents when he filed his petition for guardianship.
6
To qualify for SIJS, applicants must be physically present in the United States,
unmarried, under the age of twenty-one, and must obtain an order of dependency from a
state juvenile court before applying to USCIS. See 8 U.S.C. § 1101(a)(27)(J)(i); see also 8
C.F.R. § 204.11(c). That order requires the juvenile court to find: (1) that the applicant is
“dependent on a juvenile court . . . or placed under the custody” of someone appointed by
the state; (2) that “it would not be in the alien’s best interest to be returned to the alien’s or
parent’s previous country of nationality or . . . habitual residence”; and (3) that
“reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect,
abandonment, or a similar basis found under State law.” 8 U.S.C. § 1101(a)(27)(J)(i), (ii);
see also 8 C.F.R. § 204.11(a), (c).

2
At the conclusion of the hearing, the family court entered an order granting Uncle’s
petition and appointed him as the child’s legal guardian. The court used the same or similar
language contained in the Supreme Court of Appeals of West Virginia’s standard
appointment of guardianship order form.

Relevant to this appeal, the family court’s order made the following findings:

The following individual who is the subject of this proceeding is minor [sic]
under West Virginia law, being under the age of 18 years and not married[.]7
...

Venue is proper in this [c]ourt regarding each minor named in the preceding
finding because each such minor is: a current state resident of this county.
...

The parents of the minor(s) are:

Father: . . . who is deceased.
Mother: . . . who is deceased[.]
...

Giving precedence to the welfare and best interest of the minor and the
importance of a competent and fit guardian, based upon the evidence
presented, and, to the extent applicable, further taking into account the
priority for consideration for appointment to be afforded the parents of the
minor, the [c]ourt hereby finds and concludes that: [Uncle] the appropriate
guardian over the person of the minor named in Paragraph 1 above.
...

[T]he basis for the above determination is as follows:

a. It is in the child’s best interest to have [Uncle] named as guardian
for the child as the [c]ourt is unaware of alternative viable options.

b. The [c]ourt also finds there is an immediate need for the appointment
of a guardian in order to protect the welfare and best interests of the
minor until such time that the guardian(s) appointed herein qualify
by giving the required bond.

On October 25, 2025, Uncle filed a motion for the family court to reconsider the
guardianship order, asserting that the order should be amended. Uncle contended that the

7
The order then listed M.A.G.’s full name, age, and date of birth.

3
September 25, 2025, order appointing him as the child’s guardian did not address the
specific findings required under Section 1101(a)(27)(J) of the Immigration and Nationality
Act and asked the family court to reconsider and amend the guardianship order to reflect
the following specific findings:

a. [M.A.G.] is under 21 years old and unmarried.

b. This [c]ourt has jurisdiction under West Virginia law to make judicial
determinations about the guardianship, custody, and care of juveniles.

c. Reunification with one or both of [M.A.G.’s] parents is not viable due to
abuse, neglect, abandonment, or a similar basis found under state law.

d. It would not be in [M.A.G.’s] best interest to return to his parents’ previous
country of nationality or country of last habitual residence—Mexico.

On November 7, 2025, the family court entered an order denying Uncle’s motion
for reconsideration. Regarding the first three specific findings, the court explained that a
reasonable person reviewing the guardianship order could rationally glean and determine
that M.A.G. was under twenty-one and unmarried, that the court had proper jurisdiction to
appoint a guardian for M.A.G., and that reunification with M.A.G.’s parents was not viable
because they were deceased. The court further found that because the death of both parents
were grounds for the guardianship order, the issues of abandonment and abuse were moot.
Regarding the fourth finding, the court explained that it was neither necessary nor required
to make such a finding when appointing a guardian pursuant to chapter forty-four article
ten of the West Virginia Code, and that the court was “without any information as to
whether or not returning him to Mexico would be in his best interest or not.” It is from this
November 7, 2025, order denying Uncle’s motion for reconsideration that he now appeals.

When reviewing the order of a family court, we apply the following standard of
review:

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

4
Uncle argues two assignments of error on appeal that will be consolidated for clarity
and efficiency. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396,
402, 729 S.E.2d 231, 237 (2012) (stating that “the assignments of error will be consolidated
and discussed accordingly”). Uncle first contends that the family court erred by finding
that it did not have jurisdiction to make his requested SIJS special findings.8 His second
assignment of error asserts that the family court erred by failing to consider and make
determinations regarding the special SIJS findings because he properly raised the issue in
his petition for guardianship. We disagree.

Motions for reconsideration of family court orders are governed by West Virginia
Code § 51-2A-10(a) (2001), which provides the following:

Any party may file a motion for reconsideration of a temporary or final order
of the family court for the following reasons: (1) Mistake, inadvertence,
surprise, excusable neglect or unavoidable cause; (2) newly discovered
evidence which by due diligence could not have been available at the time
the matter was submitted to the court for decision; (3) fraud,
misrepresentation or other misconduct of an adverse party; (4) clerical or
other technical deficiencies contained in the order; or (5) any other reason
justifying relief from the operation of the order.

This Court has explained that a motion for reconsideration under this section “is not an
opportunity to reargue facts upon which a court has already ruled.” Kaitlyn G. v. Jonathon
C., No 23-ICA-553, 2024 WL 3252327, at *3 (W. Va. Ct. App. July 1, 2024)
(memorandum decision); Kierstyn C. v Justin B., No. 23-ICA-200, 2024 WL 1256070, at
*4 (W. Va. Ct. App. March 25, 2024) (memorandum decision) (“A motion for
reconsideration is simply not an opportunity to relitigate facts upon which a court has
already ruled.”); see also Phillips v. Stear, 236 W. Va. 702, 711, 783 S.E.2d 567, 576
(2016) (explaining that the analogous Rule 60(b) motion “is designed to address mistakes
attributable to special circumstances and not merely to erroneous applications of law.”)
(citation modified).

Here, Uncle requested the specific SIJS findings when he first filed his petition for
guardianship on July 2, 2025; his accompanying motion specifically asked the court to
include those findings in the guardianship order. Additionally, counsel for Uncle made the
same request during the court’s September 25, 2025, guardianship hearing. The only order
before this Court is the order denying Uncle’s motion for reconsideration and West
Virginia Code § 51-2A-10(a) along with supporting case law is clear—a motion for

8
The family court stated from the bench that it was unaware whether it was within
the family court’s jurisdiction to make the requested SJIS findings, but this comment on
jurisdiction is not in the order on appeal.

5
reconsideration is simply not an opportunity for a party to have a “second bite of the apple.”
Uncle’s motion for reconsideration was based on facts and arguments that were already
presented at the September 25, 2025, hearing and ruled upon in the family court’s
guardianship order. As such, we are unable to conclude that the family court clearly erred
or abused its discretion in denying Uncle’s motion for reconsideration.

Accordingly, we affirm the family court’s November 7, 2025, order.

Affirmed.

ISSUED: May 1, 2026

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

6