In Re: E.J.M., a protected person

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
IN RE: E.J.M., A PROTECTED PERSON, April 22, 2024
ASHLEY N. DEEM, DEPUTY CLERK
No. 23-ICA-92 (Cir. Ct. Cabell Cnty. No. 21-G-23) INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Mary M. appeals the February 17, 2023, “Order Regarding Petition to
Terminate, Revoke or Modify Appointment of Guardian And/Or Conservator” from the
Cabell County Circuit Court granting the recommendation of the mental hygiene
commissioner to restrict Mary M.’s access to monitor her mother’s financial accounts.1
Respondent Steve M., the husband and guardian/conservator of E.J.M., filed a timely
response.2 Mary M. filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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 circuit court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

This case arises out of a guardianship/conservatorship that was initiated by Mary
M. in May 2021 when she filed a petition requesting that her mother, E.J.M., be declared
a protected person and that she be appointed guardian/conservator. At an October 27, 2021,
hearing, the mental hygiene commissioner found that E.J.M. met the definition of a
protected person, but appointed E.J.M.’s husband, Steve M., as her guardian/conservator.
Mary M. was granted access to review E.J.M.’s bank statements. That order was adopted
by the circuit court on November 12, 2021.

In January 2023, Steve M. filed a petition to modify the
guardianship/conservatorship order seeking to remove Mary M. as an overseer of her
mother’s financial accounts. At the hearing on February 15, 2023, Steve M. testified that
Mary M. called him every time he spent any money on behalf of E.J.M., complaining about

1
We use initials where necessary to protect the identities of those involved in this
case. See W. Va. R. App. P. 40(e).
2
Mary M. and Steve M. are both self-represented. Guardian ad litem for E.J.M.
Randall D. Wall, Esq., did not participate in this appeal.

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the expense and threatening to call the guardian ad litem. Steve M. testified that he only
spent E.J.M.’s money for her benefit and necessary household expenses. He testified that
while he made purchases using E.J.M.’s credit cards, it was solely for necessary expenses,
including a refrigerator for their home and to replace ventilation ductwork as part of an
urgent heating repair. Steve M. testified that he had no other means of affording these
expenses, but that he was splitting the cost of paying the charges down with E.J.M. The
guardian ad litem testified at the hearing that he had reviewed Steve M.’s accounting of the
expenses and found that they appeared to be normal living expenses that did not concern
him.

During the hearing, the mental hygiene commissioner agreed that it appeared that
Mary M. was “nitpicking” over the expenses Steve M. was claiming in taking care of
E.J.M. and noted that E.J.M. had a place to live and food to eat and that all those necessities
cost money. Mary M. testified that she found it unfair that E.J.M. was paying half of the
expenses of Steve M.’s home, maintenance, repairs, and insurance, when E.J.M.’s name is
not on the deed, and half the payment on Steve M.’s car when E.J.M. does not drive or use
the car. She also testified that Steve M. lied in a prior hearing when he testified that he had
cut up his wife’s Sears credit card and would not use it again, and that she believed he
should spend cash from E.J.M.’s bank account on her expenses instead of incurring
additional fees and interest by using her credit cards.

The mental hygiene commissioner issued its “Findings and Recommendation of
Mental Hygiene Commissioner on Petition to Terminate, Revoke or Modify Appointment”
that noted that Mary M. had “scrutinized a number of significant transactions . . . that . . .
are being used for the benefit of the protected person and [E.J.M.] shares equally in the
monthly expenses. There has been much discord between the parties. Counsel for the
protected person recommended that the petition of Steve M[.] be granted.” The circuit court
accepted and adopted the entire findings and recommendations of the mental hygiene
commissioner and ordered that Mary M. would no longer be granted access to monitor her
mother’s bank account. It is from that order that Mary M. now appeals.

We review this appeal using the same standard of review applied by our Supreme
Court of Appeals when it reviews circuit court orders in adult guardianship and
conservatorship cases:

This Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of
fact under a clearly erroneous standard; conclusions of law are reviewed de
novo.

Syl. Pt. 6, In re Donald M., 233 W. Va. 416, 758 S.E.2d 769 (2014) (citing Syl. Pt. 4,
Burgess v. Porterfield, 196 W. Va. 178, 469 S.E.2d 114 (1996)); see also In re H.A., No.

2
22-ICA-40, 2023 WL 2863296, at *4 (W. Va. Ct. App. Apr. 10, 2023) (memorandum
decision).

A petition to modify guardian or conservator appointments is governed by the West
Virginia Guardianship and Conservatorship Act, West Virginia Code § 44A-4-6 (1994).
Most important here is subsection (b), which provides:

(b) Upon petition by the protected person, by the guardian or conservator, by
any other interested person, or upon the motion of the court, the court may
terminate a guardianship, conservatorship, or both, or modify the type of
appointment or the areas of protection, management or assistance previously
granted. Such termination, revocation or modification may be ordered if:

(1) The protected person is no longer in need of the assistance or protection
of a guardian or conservator;

(2) The extent of protection, management or assistance previously granted is
either excessive or insufficient considering the current need therefor;

(3) The protected person’s understanding or capacity to manage the estate
and financial affairs or to provide for his or her health, care or safety has
so changed as to warrant such action;

(4) No suitable guardian or conservator can be secured who is willing to
exercise the assigned duties; or

(5) It is otherwise in the best interest of the protected person.

Id.

On appeal, Mary M. argues that the circuit court erred by removing her from
overseeing her mother’s financial accounts because of Steve M.’s allegations that she
harassed him. She asserts that there is evidence that Steve M. used E.J.M.’s credit for his
personal gain by making home improvements while creating unnecessary credit card debt
for E.J.M. by, for example, charging $5,300.00 to E.J.M.’s credit card for new ductwork,
and for using her Sears card to purchase a new refrigerator after previously testifying that
he had “cut up” the card and “shredded” the information he needed to access the account
online. Mary M. alleges both purchases benefitted Steve M. and were made on E.J.M.’s
credit cards, incurring additional expense through interest, even though there were
sufficient funds in E.J.M.’s bank account to pay cash for the items. She claims she only
contacted Steve M. when she observed a new charge on her mother’s credit card statements
or unusual activities on her mother’s bank statements. She acknowledged that she contacted
him to contest a charge she observed for housecleaning because she believes that Steve M.

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should be able to clean the house without assistance. She argues that she attempted to
contact the guardian ad litem about the alleged misuse of her mother’s credit cards, but that
he did not respond to her. She argues that she should be reinstated as a monitor of her
mother’s financial accounts and that the court should remove Steve M.’s access to her
mother’s credit cards to prevent him from making additional charges.

Upon review, we cannot say that the circuit court abused its discretion in its
determination to modify the order and remove Mary M.’s access to monitor her mother’s
bank account. The mental hygiene commissioner conducted a hearing wherein it took
testimony from witnesses, including Mary M. and Steve M., regarding the discord between
them. Moreover, the guardian ad litem for E.J.M. recommended that Steve M.’s petition to
remove Mary M. be granted and further testified that he found the expenses Steve M.
incurred on behalf of E.J.M. to be reasonable living expenses. The circuit court was within
its discretion to adopt the findings and recommendations of the mental hygiene
commissioner in this regard. We find no reason to disturb the circuit court’s order on that
basis.3

For the foregoing reasons, we affirm the circuit court’s February 17, 2023, “Order
Regarding Petition to Terminate, Revoke or Modify Appointment of Guardian And/Or
Conservator.”

Affirmed.

ISSUED: April 22, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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Mary M. further argues that the circuit court erred by denying her request to visit
her mother in her mother’s home due to her mother’s physical disabilities. However, it
appears that no such request was before the mental hygiene commissioner or the circuit
court in the underlying Petition to Modify that is the subject of the order on appeal.
Moreover, the order on appeal does not modify Mary M.’s access to visit her mother. It
simply states that “Heather and Mary M. shall continue to have access to their mother as
set out in the prior order.” As it appears this issue is not properly before this Court, we
decline to address it.

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