In Re GUARDIANSHIP OF ZEALAND W. and Sophia W. ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1280
September Term, 2013
IN RE GUARDIANSHIP OF ZEALAND W.
AND SOPHIA W.
Graeff,
Arthur,
Salmon, James P.
(Retired, Specially Assigned),
JJ.
Opinion by Salmon, J.
Filed: October 29, 2014
This interlocutory appeal originated in a guardianship case that involves Zealand W.
(born September 9, 2000) and Zealand’s sister, Sophia W. (born January 11, 2003). The
appellant in this case is Susan W., the mother of Zealand and Sophia. The appellee is
Conway Tattersall [“Mr. Tattersall”].
On September 20, 2012, David W., the father of Zealand and Sophia, died in
Montgomery County, Maryland. Five days after David W.’s death, his first cousin, Mr.
Tattersall, filed a guardianship action in the Circuit Court for Montgomery County. Mr.
Tattersall alleged that Susan W. was unfit to be the guardian of her children. In his petition,
Mr. Tattersall asserted that the Circuit Court for Montgomery County had a right to appoint
a guardian of the person of both Zealand and Sophia pursuant to Md. Code (2011 Repl. Vol.),
Estates & Trusts Article, section 13-702(a), which provides:
(a) General Rule - If neither parent is serving as guardian of the person and
no testamentary appointment has been made, on petition by any person
interested in the welfare of the minor, and after notice and hearing, the court
may appoint a guardian of the person of an unmarried minor. If the minor has
attained his 14th birthday, and if the person otherwise is qualified, the court
shall appoint a person designated by the minor, unless the decision is not in the
best interests of the minor. This section may not be construed to require court
appointment of a guardian of the person of a minor if there is no good reason,
such as a dispute, for a court appointment.
(Emphasis added).
Mr. Tattersall contends that section 13-702(a) allowed the court to appoint a guardian
because neither parent was serving as guardian of the children and no testamentary
appointment had been made. In this appeal, Susan W. contends that section 13-702(a) did
not grant the circuit court “subject matter” jurisdiction to appoint a guardian of the person
of her minor children because, after the death of David W., she, as a matter of law, was
serving as the guardian of the person of the children. In support of her position, Susan W.
primarily relies on the case of In re: Adoption/Guardianship of Tracy K., 434 Md. 198
(2013). As a consequence of the circuit court’s [alleged] lack of jurisdiction, Susan W.
contends that the court erred in signing various interlocutory orders in this case.
Recognizing, impliedly at least, that most of the orders signed thus far were interlocutory,
and thus not appealable, she focuses on four orders signed by the court that she contends are
interlocutory orders from which an appeal may be filed pursuant to Md. Code (2006 Repl.
Vol.) Courts & Judicial Proceedings Article (“CJ”) section 12-303(3). The relevant
interlocutory orders are: (1) an order entered on July 25, 2013 directing Susan W. to pay a
custody evaluator $5,000; (2) an order entered on August 15, 2013 denying Susan W.’s
motion for the issuance of a writ of habeas corpus; (3) an order entered on October 25, 2013
holding Susan W. in contempt for failure to pay $5,000 to the custody evaluator; and (4) an
order dated October 25, 2013, entering judgment in the amount of $5,000 against Susan W.
Mr. Tattersall did not file a brief with this Court. Instead, Mr. Tattersall, by counsel,
filed on June 6, 2014, a “line” addressed to the clerk of this Court. The “line” advised the
clerk that Mr. Tattersall “opposes the [a]ppeal and the brief filed by Susan W.” In support
of that “line,” counsel for Mr. Tattersall relied upon pleadings that Mr. Tattersall, along with
the Best Interest Attorney for the children, filed in opposition to Susan W.’s motion to
dismiss the case for lack of subject matter jurisdiction.
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For the reasons set forth below, we conclude that although the circuit court did have
subject matter jurisdiction to appoint a guardian, the court did not appropriately exercise that
jurisdiction in this case. Because the court did not appropriately exercise its jurisdiction, we
shall hold: (1) that the circuit court erred in holding Susan W. in contempt and in directing
that a $5,000 judgment against her should be entered; and (2) that the court erred in ordering
that Susan W. pay fees to a custody evaluator. In regard to the appeal from the denial of a
writ of habeas corpus, we shall hold that such an appeal is not allowed.
I.
FACTS AND PROCEEDINGS
The circuit court file in this case already includes almost 200 docket entries. But, for
purposes of deciding these interlocutory appeals, it is unnecessary for us to summarize most
of the pleadings or orders that have been filed thus far. Accordingly, the summary set forth
below is limited to a recap of the facts, pleadings and orders necessary to put in context the
issues presented.
Susan W. and David W. were married on February 7, 2000. Zealand, now thirteen,
and Sophia, now eleven, were born to the marriage. During the marriage, Susan W. and her
husband lived in Spartanburg County, South Carolina. The parties were divorced on August
22, 2005 by the Seventh Judicial Circuit for the State of South Carolina. At the time of the
divorce, David W., was awarded custody of Zealand and Sophia. Susan W. was granted
visitation rights, but visitation with her children was required to be supervised by relatives.
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The reason that Susan W.’s visitation rights were ordered to be supervised was because she
had a history of serious alcohol abuse. From the time of the divorce up until September 20,
2012, when David W. died, Susan W. never had custody of her children and visitation was
always supervised.
Approximately one year prior to his death, David W. and the two children moved to
Montgomery County, Maryland. Five days after David W.’s death, Mr. Tattersall, who
usually lives in Australia, filed a pleading entitled “Emergency Petition for the Appointment
of Temporary and Permanent Guardians of the Person of Minors” (the Petition). He alleged
that Susan W., the mother of the minor children, currently lived in Huntington, West Virginia
but was not “an appropriate person” to care for the minor children because: (1) she lives with
her parents in West Virginia; (2) she has had “long periods of unemployment in the past;”
(3) she has a “lengthy history of serious neglect of the minor children;” and (4) she “has a
long-standing history of alcoholism and bulimia.”
Mr. Tattersall further alleged in the Petition that the two children were currently living
with Tim Pirrone and Satomi Pirrone in Rockville, Maryland. According to the Petition, Mr.
and Mrs. Pirrone were friends of the late David W. Mr. Tattersall requested that the Pirrones
be appointed temporary co-guardians of the person of the two minor children on an
emergency basis. The Petition also stated that the action was brought pursuant to Md. Code,
Estates & Trusts Article, section 13-702.
On the same day that the Petition was filed, an emergency hearing was held in the
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Circuit Court for Montgomery County. Susan W. and her parents were in attendance at the
hearing as was Mr. Tattersall and his counsel. Susan W., who was not represented by
counsel, opposed the appointment of a guardian of the person of her children. Nevertheless,
the circuit court appointed Mr. and Mrs. Pirrone as temporary co-guardians of the person of
Zealand and Sophia. Susan W. was granted the right to have supervised visitation with her
children.
On September 27, 2012, Steve Gaba, Esquire, was appointed by the court as the Best
Interest Attorney for Zealand and Sophia. Four days later, on October 1, 2012, Susan W. and
her parents, Gene R. Weekley and Willa M. Weekley, pro se, filed a motion to strike the
order appointing temporary guardians of the minor children. They asked that Mr. and Mrs.
Weekley, the children’s maternal grandparents, be appointed Zealand and Sophia’s
temporary guardians.
On November 29, 2012, Mr. Tattersall, by counsel, filed a pleading entitled “Motion
to Appoint a Substitute Temporary Guardian of the Person of Minors.” Movant alleged that
Mr. and Mrs. Pirrone were no longer “able to provide a home for the minor children.”
Movant asked the court to appoint “either Jim Wood of Easton, Maryland or Darrin Wolfe
of Durham, North Carolina as the substitute temporary guardian of the minor children.”
Movant alleged that both Mr. Wood and Mr. Wolfe “and their families have been close
family friends of the minor children and [their father] . . . for many years.”
The maternal grandparents, by counsel, filed a “Counter-Petition for Guardianship of
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the Person and the Property of the Minor Children” on November 30, 2012. They requested
in their counter-petition that the court appoint them as temporary and permanent guardians
of their grandchildren. On the same date, the maternal grandparents filed an opposition to
Mr. Tattersall’s November 29, 2012 petition.
The court, on December 14, 2012, appointed Mr. Tattersall, who at that time was
temporarily living in Rockville, Maryland, as the substitute temporary guardian of the person
of the minor children. The order provided that the children’s maternal grandparents would
be given certain visitation rights with their grandchildren, but that Susan W. would be
granted no rights of visitation, although she was allowed to have telephone contact with the
children twice weekly.
On January 16, 2013, the court appointed Darrin Wolfe and his wife, Hilary Wolfe,
who reside in Durham, North Carolina, as temporary co-guardians of the minor children.
That order was consented to by the maternal grandparents and all other parties except for
Susan W.
On July 19, 2013, Susan W., represented by new counsel, filed a motion to dismiss
the case based on (1) failure to state a claim upon which relief can be granted, and (2) lack
of subject matter jurisdiction. Movant’s counsel argued:
The jurisdictional problem . . . is that a cousin [Mr. Tattersall], distant
or otherwise, has no statutory right under Estates and Trusts Article § 13-702
to seek the appointment of a guardian of the person of a minor child, whose
father is deceased, but whose mother is alive and available to raise the child.
[I]n Montgomery County, only the Department of Health and Human
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Services may successfully file a court petition[,] without parental consent[,] for
the appointment of a guardian for a minor child with a living parent available
to raise that child.
The court appointment of a guardian of a child with a living parent is
a serious intrusion by the state into a family’s Constitutionally-protected
private affairs, and, in effect, terminates and/or suspends the parental rights of
the living parent. See Carroll County Dept. of Social Services v. Edelmann,
320 Md. 150, 175 (1990):
The only express statutory authorization for a court to terminate
parental rights and obligations short of adoption is contained in
the Family Law Article, § 5-313 and §5-317 [now §5-320, et
seq.], which permit a circuit court to determine those rights and
obligations through a decree of guardianship.
Under current Family Law Article § 5-320, et seq., like the limitations
embedded in the guardianship appointment provisions in the Estate and Trusts
Article, a court (in Montgomery County, the Juvenile Division of the Circuit
Court) is empowered to grant a guardianship only if the local office of the
Department of Health and Human Services filed or did not object to the
petition and, in the absence of an adversarial termination of parental rights, the
child’s parent consents in writing, knowingly and voluntarily, on the record
before the juvenile court.
(Footnote omitted).
* * *
In the memorandum in support of the motion to dismiss, Susan W.’s counsel
maintained that in the subject case the answer to the question of whether the court had the
right to appoint a guardian of the person of a minor child under section 13-702 of the Estates
and Trusts Article depended on whether, at the time of the appointment, “neither parent is
serving as guardian.” Counsel for movant contended that Susan W. was serving as guardian
of her children. Her counsel relied on an interpretation of section 13-702 of the Estates &
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Trusts Article by the Attorney General of Maryland, 77 OP. Atty. Gen. 41, 44 (March 20,
1992). The opinion read, in pertinent part:
Although the phrase “neither parent is serving as guardian” in
ET §13-702(a) is not defined, that provision reasonably must be
interpreted to refer to the instance in which there is no surviving
parent who is legally responsible for the minor, either because
both parents are deceased or the surviving parent is no longer
legally responsible for the minor.
Counsel for Susan W. further pointed out that Md. Code (2012 Repl. Vol.), Family
Law Article (“FL”) § 5-203(a)(2)(i) provides that a parent becomes “the sole natural
guardian of the minor child if the other parent . . . dies.” 1
Mr. Tattersall, by counsel, and the Best Interest Attorney, filed oppositions to the
motion to dismiss. Both Mr. Tattersall and the Best Interest Attorney argued that section 13-
1
In her memorandum in support of her dismissal motion, Susan W. (“Mother”) also
made clear her disagreement with Mr. Tattersall’s characterization of her as an unfit
parent, saying:
While it is difficult to predict the future, Mother is looking ahead to a
rewarding and productive life with her two children. She is gainfully
employed as a dietician for Sodexho, a position with health insurance
coverage which will cover her children. She has a commodious three-
bedroom apartment, has already met with local school administrators in the
district in which she lives, and has reached out to therapists who can and
will help her and her children adjust to their new living arrangements.
Finally, to ensure as best she can that she continues to constructively move
forward, she faithfully attends AA meetings and continues with a sponsor,
sees a therapist, and has a great deal of love and support from people in her
community, in addition to the children’s grandparents and other extended
family.
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702(a) of the Estates & Trusts Article, did give the court subject matter jurisdiction in this
case. They argued as follows:
Here, although only one parent is deceased[,] for at least the past six years the
surviving parent, Susan [W], has repeatedly been denied custody of her
children and has only been granted supervised visits with her children. She
therefore has not been responsible for or acted as the caretaker for her children
without supervision for six years. Under these extreme facts, the statutory
requirement that “neither parent is serving as guardian of the person” is met,
and therefore the Court has the authority to grant guardianship in this matter.[2]
On July 25, 2013, while the motion to dismiss for lack of subject matter jurisdiction
was pending, the circuit court passed an order appointing Dr. Rebecca Snyder “to conduct
a forensic fitness and custody evaluation regarding the custody[3] and guardianship” of the
minor children. Among other things, Dr. Snyder was given the task of producing “an
2
Substantively, the oppositions of the Best Interest Attorney and Mr. Tattersall
were identical. Both the Best Interest Attorney and Mr. Tattersall, in opposition to Susan
W.’s motion to dismiss, argued that Susan W. has already been deemed “unfit” to have
custody of her children because previously, South Carolina judges had “repeatedly
denied” her custody of the minor children. It is true that at the time that the South
Carolina courts were called upon to decide who should have custody of the minor
children, it was determined that, at that time, Susan W. was unfit to have custody. But no
court has ruled that she should be denied all her parental rights. And, as will be explained
infra, in Maryland, in cases where a living parent objects, the only way a parent can be
deprived of his/her parental rights is pursuant to a proceeding brought under title 5 of the
Family Law Article. Here, if such a proceeding had been brought in Montgomery
County, the Montgomery County Department of Human Services would have had to
prove by clear and convincing evidence that Susan W. was presently unfit, or that
exceptional circumstances existed. See Rashawn H., 402 Md. at 477, 499 (2007). That is
a substantially greater burden than the one imposed when a court makes a custody
determination. In custody cases, the evidence supporting the custody award must be by a
“mere preponderance.” Id.
3
This case is not now, nor has it ever been, a custody case.
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updated” forensic custody evaluation of the maternal grandparents of the children, to
determine their fitness and “appropriateness” to be appointed as permanent guardians of the
person of the minor children. Prior to making such a determination, Dr. Snyder was
instructed to perform such psychological testing, as well as forensic interviews “as she deems
necessary . . . .” The July 25, 2013 order additionally provided that within ten days, Mr.
Tattersall was to advance Dr. Snyder $5,000 and Susan W. and her parents collectively, were
to advance an additional $5,000 towards payment of Dr. Snyder’s fees. The order also
provided that “all additional fees and costs” were to be apportioned one-half to Mr. Tattersall
and one-half to Susan W. and her parents. Additionally, the court ordered Susan W. and her
parents, within fifteen days of submission, “to pay their one-half share of the amounts shown
in all invoices submitted” by Dr. Snyder.
Susan W., on August 5, 2013, filed a motion for issuance of a writ of habeas corpus.
Movant stated that the writ was requested by her on behalf of her two minor children. She
asked that the court issue a writ of habeas corpus directing Darrin Wolfe and Hilary Wolfe
“to produce the children and appear with them before this [c]ourt to show cause why the
children should not immediately be returned to their mother.” According to the motion, a
writ of habeas corpus was authorized by CJ sections 3-701- 3-702.
The circuit court, on August 15, 2013, denied the request for the issuance of a writ of
habeas corpus. Eight days later, Susan W. filed a notice of interlocutory appeal to this
Court. The notice of appeal stated that the appeal was from the denial of the writ of habeas
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corpus and from “related earlier underlying orders, decisions and rulings, including[,] but not
limited to[,] the orders directing a ‘custody evaluation’ and the payment of professional fees
and suit moneys in connection with this case.”
The circuit court, on September 25, 2013, denied Susan W.’s July 19, 2013 motion
to dismiss. One month later, the court signed an order allowing the children’s maternal
grandparents to withdraw their counter-petition, in which they had asked the court to appoint
them as guardians.
On October 25, 2013, the circuit court entered an order that read, insofar as here
pertinent:
ORDERED, that . . . Susan [W.], be held in Contempt for failure to
comply with the terms of this Court’s Order docketed herein at Docket Entry
#111 regarding payment of fees for [Dr.] Rebecca Snyder . . .; and it is further,
ORDERED, that a judgment be entered against . . . Susan [W.] and in
favor of [Dr.] Rebecca Snyder . . . in the amount of $5,000; and it is further,
* * *
ORDERED, that the Contempt finding and sanction will be purged
upon payment of this judgment.
Susan W. filed a second notice of interlocutory appeal on November 8, 2013.
In December of 2013, while this appeal was pending, the circuit court held a hearing,
and afterwards, on January 22, 2014, entered an order that, insofar as here pertinent,
continued the Wolfes as temporary guardians of the person of the two children. The court’s
order stated that an earlier order passed by the court that restricted contact between Susan W.
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and her children remain in effect. In addition, the January 22, 2014 order placed numerous
restrictions on Susan W.’s activities including a requirement that she wear an alcohol
monitoring bracelet, attend alcoholics anonymous meetings and therapy sessions, and execute
various releases.
II.
DISCUSSION
CJ section 12-304(a) allows an interlocutory appeal from any order “adjudging any
person in contempt . . . .” In addition, CJ section 12-303(3)(v) allows an interlocutory appeal
from any order for the payment of money. And, CJ section 12-303(3)(x), allows an
interlocutory appeal from any order “[d]epriving a parent . . . of the care and custody of his
child . . . .”
Even when interlocutory appeals are permitted, however, such an appeal must be filed
within thirty days of the entry of the order from which the appeal is taken. If the appeal is
not filed within thirty days after the entry of an appealable interlocutory order, this Court
lacks jurisdiction to entertain the interlocutory appeal. See Maryland Rule 8-202(a) (“[T]he
notice of appeal shall be filed within thirty days after entry of the . . . order from which the
appeal is taken.”). See also Stevens v. Tokuda, 216 Md. App. 155, 164-65 (2014), and In re
Ariel G., 153 Md. App. 698, 704 (2003).
In her brief, Susan W. asked us to vacate “any extant guardianship orders” signed by
the circuit court. Technically, we do not have jurisdiction to vacate such orders because all
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guardianship orders entered in this case were docketed either: (1) more than thirty days prior
to the earliest date that Susan W. filed a notice of interlocutory appeal, or (2) after the last
notice of appeal was filed by appellant. Nevertheless, we shall review the question of
whether Susan W. is correct when she argues that the circuit court erred when it appointed
guardians in this case pursuant to section 13-702 of the Estates & Trusts Article. Such a
review is necessary for two reasons: (1) to decide issues that were the appropriate subject of
an interlocutory appeal; and (2) for the guidance of the circuit court upon remand.
In Carroll County Dept. of Social Services v. Edelmann, 320 Md. at 176, the Court
of Appeals said:
Absent specific statutory authorization which does not now exist in this State,
a circuit court has no authority to terminate a parental relationship other than
through a decree of adoption or guardianship under title 5, subtitle 3 of the
Family Law Article.
As pointed out, supra, section 13-702 of the Estates & Trusts Article, allows the court
to appoint a guardian of the person of a minor “[i]f neither parent is serving as guardian of
the person and no testamentary appointment has been made . . . .” Here, no testamentary
appointment was made - nor could a valid appointment have been made by David W. because
Susan W. was alive at the time of his death.
FL section 5-203(b) provides: “The parents of a minor child, as defined in Article 1,
§ 24 of this Code: (1) are jointly and severally responsible for the child’s support, care,
nurture, welfare and education; and (2) have the same powers and duties in relation to the
child.”
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FL, section 5-203(a) reads as follows:
(a) Natural guardianship. – (1) The parents are the joint natural guardians
of their minor child.
(2) A parent is the sole natural guardian of the minor child if the other
parent;
(i) dies;
(ii) abandons the family; or
(iii) is incapable of acting as a parent.
(Emphasis supplied).
It is clear from the language used in FL, section 5-203 that Susan W. was, as of the
date David W. died: 1) “responsible for her children; and 2) their natural guardian.
Susan W.’s rights as a parent have never been terminated pursuant to title 5, subtitle
3 of the Family Law Article. Under such circumstances, section 13-702 of the Estates &
Trusts Article gave the court no authority to appoint a guardian of the person of her children.
If, at the time of David W.’s death, Mr. Tattersall, or anyone else, had grounds to
believe that Susan W. was not a fit person to have custody of her children, the matter should
have been brought to the attention of the Department of Health & Human Services for
Montgomery County, so that that Department could attempt to prove, pursuant to FL, section
5-301 et seq., that her parental rights should be terminated and that the Department should
be appointed the childrens’ guardian.
The case most analogous to the one here at issue is In re: Adoption/Guardianship of
Tracy K., supra. Tracy K. was born in August 1991. 434 Md. at 201. Sometime after his
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birth, Tracy K.’s mother died.4 Id. Tracy K. lived with his father, Tracy S. (hereinafter
“Father”). Id. When Tracy K. was fifteen-years-old, he went to live with his maternal aunt,
Jacqueline D.K. (hereinafter “Aunt”). Id. Subsequently, Aunt filed a petition for the
appointment of a guardian of the person of Tracy K. in the Orphans’ Court for Prince
George’s County, Maryland. At a hearing held in the Orphans’ Court, Tracy K.’s Aunt
testified to the following: (1) no legal proceedings were ongoing currently (or had occurred)
seeking to terminate Father’s parental rights; (2) Father refused to help with Tracy K.’s
maintenance; (3) Father refused to consent to the guardianship; and (4) Tracy K. was not
entitled to any funds or property from his mother’s estate or any other estate. Id. The
Orphans’ Court dismissed the petition for guardianship for lack of jurisdiction. Id. In
dismissing the case, the Orphans’ Court explained that its jurisdiction is “limited to cases
where a minor would receive assets resulting from someone’s death . . . [or] when there’s no
surviving parent or when a surviving parent’s legal rights to be responsible for the child have
had been terminated.” Id. On appeal, the question presented was:
Does the Orphans’ Court have jurisdiction over Petitions for Guardianship of
the person of a minor child where one of the natural parents is alive, where
parental rights have not been terminated and no testamentary appointment has
been made?
Id. at 202.
The Court of Appeals answered that question in the negative. Id. at 209. In reaching
4
The date of Tracy K.’s mother’s death is not disclosed in the opinion by the
Maryland Court of Appeals.
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its decision, the Court was required to determine whether section 13-702(a) of the Estates &
Trusts Article expanded the Orphans’ Court’s jurisdiction. Id. Section 13-105(a), of the
Estates & Trusts Article, then, as now, states: “The orphans’ courts and the circuit courts
have concurrent jurisdiction over guardians of the person of a minor and over protective
proceedings for minors.” In Tracy K., the Court pointed out that section 13-702(a) of the
Estates & Trusts Article limits jurisdiction over guardianship of the person petitions to
situations in which neither parent is a guardian and there is no testamentary grant of
guardianship. Id. at 208.
In Tracy K., Aunt asserted that the phrase “neither parent is serving as a guardian”
included circumstances where the parents are not deceased and their parental rights have not
been terminated. Id. The Court rejected such an interpretation, and explained:
We reject the petitioner’s proposed interpretation of ET § 13-702(a). This
argument is inconsistent with the established jurisdiction over related family
law matters. Maryland law grants the circuit and juvenile courts the
jurisdiction to terminate parental rights. See Maryland Code (1974, 2006
Repl. Vol.), Family Law Article (“FL”) § 1-201; Carroll Cnty. Dep’t. of Social
Servs. v. Edelmann, 320 Md. 150, 175-76, 577 A.2d 14, 26 (1990). Until such
determination, “[t]he parents [are] the natural guardians of their minor child”
and are “responsible for the child’s support, care, nurture, welfare, and
education.” FL § 5-203(a)-(b). Title 5 of the Family Law Article requires the
courts to make very specific inquiries into the best interests of the child before
ruling on the termination of the parental rights. Under the petitioner’s
interpretation, the Orphans’ Court would have the jurisdiction to determine
whether the parent is serving as a guardian, but the statute does not give the
Orphans’ Court a standard by which to answer this question. It is unlikely that
the Legislature intended for the circuit and juvenile courts to engage in an
intensive, statutorily-guided, and fact-based inquiry, but left the Orphans’
Court to determine its own standard. Without express authority from the
Maryland General Assembly, we may not grant, by interpretation, the Orphans’
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Court this additional jurisdiction.
434 Md. at 208-09. (Emphasis added).
What was said in Tracy K. is here applicable. Section 13-702(a) of the Estates &
Trusts Article does not allow a circuit court judge to appoint a guardian of the person of a
minor child where, as here: (1) the mother of the child is still living; and (2) the mother’s
rights have never been terminated in this state pursuant to Title 5 of the Family Law Article;
and 3) parental rights have not been terminated by any other court.
Susan W. contends in this appeal, as she did below, that the circuit court for
Montgomery County did not have “subject matter” jurisdiction to appoint a guardian.
Technically, the circuit court did have subject matter jurisdiction; it did not, however, have
authority under section 13-702 of the Estates and Trusts Article to do so. See Carroll
County Dept. of Social Services v. Edelmann, 320 Md. at 169-70.
The facts in Edelmann, in so far as here relevant, were as follows. Bonnie Clas and
David Edelmann were the parents of a minor child named Pamela Sue Reed (“Pamela”). Id.
at 154. In May 1987, Ms. Clas filed, in the Circuit Court for Carroll County, a petition to
terminate Mr. Edelmann’s parental rights. Id. at 153. She alleged that Mr. Edelmann had
not exercised visitation with Pamela for the previous five years and had consented to her
petition. Id. at 155. Mr. Edelmann’s attorney entered his appearance and acknowledged that
his client did consent to the termination of his parental rights. Id. at 156. The Carroll County
Dept. of Social Services (DSS), filed a motion to intervene in the case. It asserted that,
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inasmuch as Ms. Clas had been receiving Aid to Families of Dependent Children (AFDC)
monies for the benefit of Pamela and that DSS had been attempting to obtain an agreement
as to child support from Mr. Edelmann, it would be prejudiced if Ms. Clas’s petition was
granted. DSS also noted that the granting of Ms. Clas’s petition would have the effect of
extinguishing DSS’s right to collect future child support from Mr. Edelmann. Id. at 156. An
evidentiary hearing was held after which the circuit court found that it would appear to be
in Pamela’s best interest if Mr. Edelmann’s parental rights were terminated. Id. at 159-60.
Ultimately, the circuit court signed an order terminating Mr. Edelmann’s parental rights. Id.
at 163. On appeal, DSS argued, inter alia, that the circuit court had no “jurisdiction” to
terminate Mr. Edelmann’s parental rights other than through a judgment of adoption or
guardianship pursuant to Title 5 of the Family Law Article. Id. at 169. In Edelmann, the
Court made a distinction between cases where the court had no subject matter jurisdiction
and cases where the court has jurisdiction, but inappropriately exercised that jurisdiction. Id.
at 169-171. The Court explained:
As this Court has taken pains to point out in a number of recent cases, the
term “jurisdiction” encompasses a number of different meanings. As applied
to courts, it refers to “the power to act with regard to a subject matter which
‘is conferred by the sovereign authority which organizes the court, and is to be
sought for in the general nature of its powers, or in authority specially
conferred.’” Pulley v. State, supra, 287 Md. 406, 416, 412 A.2d 1244, 1249
(quoting Cooper v. Reynolds’ Lessee, 77 U.S. (10 Wall.) 308, 316, 19 L. Ed.
931, 932 (1870)). We continued in Pulley that “[i]f by that law which defines
the authority of the court, a judicial body is given the power to render a
judgment over that class of cases within which a particular one falls, then its
action cannot be assailed for want of subject matter jurisdiction.” Id. [287
Md.] at 416, 412 A.2d 1244 (quoting First Federated Com. Tr. v. Comm'r, 272
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Md. 329, 335, 322 A.2d 539, 543 (1974)) (emphasis in First Federated). See
also Block v. State, 286 Md. 266, 407 A.2d 320 (1979); Parks v. State, 287
Md. 11, 410 A.2d 597 (1980).
To some extent, of course, application of this principle depends on how one
defines the generic “class of cases.” Here, the class is defined by the authority
to terminate parental rights and obligations. There is no doubt, and indeed DSS
necessarily concedes, that equity courts do have the power – the fundamental
jurisdiction – to terminate those rights and obligations. An order of an equity
court doing so is therefore not void for want of subject matter jurisdiction. The
question rather is under what circumstances the court may appropriately
exercise that jurisdiction; is it authorized, by some provision of law or by some
inherent authority, to exercise it in this kind of case? That is the issue we need
to examine.
Id. at 169-70. (Emphasis added).
The important question in the case sub judice is not whether subject matter jurisdiction
existed; instead, the relevant questions are, as in Edelmann: (1) “under what circumstances
the court may appropriately exercise” that jurisdiction; and (2) is the court’s action
“authorized by some provision of law or by some inherent authority to exercise it in this kind
of case?”
The Edelmann Court concluded that Bonnie Clas’s petition to terminate Mr.
Edelmann’s parental rights should be dismissed. Id. at 176. That conclusion was based on
the fact that the only “express statutory authorization for a court to terminate parental rights
and obligations short of adoption is contained in” sections 5-313 and 5-317 of the Family
Law Article,5 which “permits a circuit court to terminate those rights and obligations through
a decree of guardianship.” Id. at 175. The court went on to say that a decree of guardianship
5
Now codified in FL, section 5-301 - 328.
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under title 5 of the Family Law Article:
[M]ay be entered only upon petition of a child placement agency or an attorney
for the child. Moreover, the statute looks to the termination of the rights of
both natural parents and the granting of custody of the child to a child
placement agency for adoption. It clearly does not permit the kind of order
entered in this case.
Id.
The Court added that Mr. Edelmann’s reliance on section 1-201(a) of the Family Law
Article was misplaced. Id. at 175-76. That section then, as now, gives an equity court
jurisdiction over “adoption of a child, alimony, annulment of a marriage, divorce, custody
or guardianship of a child, visitation of a child, legitimation of a child, paternity, and support
of a child.” Id. In the words of the Court, nothing in that section of the Family Law Article
“purports to authorize the court to terminate a parental relationship other than through a
decree of adoption or guardianship.” Id. at 176.
We hold that the circuit court was not authorized, under section 13-702 of the Estates
& Trusts Article to appoint a third party as a temporary or permanent guardian of the person
of either Zealand or Sophia when (1) the children’s mother is alive; (2) mother’s parental
rights have never been terminated; and (3) no testamentary appointment has been made.
III.
THE INTERLOCUTORY ORDERS
As mentioned earlier, the circuit court filed an order dated July 25, 2013, that, inter
alia, ordered Susan W. and her parents to pay Dr. Snyder, the forensic custody evaluator, the
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sum of $5,000. Susan W. filed an interlocutory appeal within thirty days of that order. Later,
the court held Susan W. in contempt for failure to pay Dr. Snyder $5,000 and, on the same
date, ordered that a $5,000 judgment be entered against Susan W. and in favor of Dr. Snyder.
An appeal was filed within thirty days of the entry of those orders.
All the interlocutory orders just mentioned were signed by the trial judge after Susan
W.’s counsel had, in a motion to dismiss, argued that the court had no right to appoint a third
party to be guardian of Susan W.’s children under section 13-702 of the Estates & Trusts
Article. Because, under the circumstances of this case, the court did not have the authority
to appoint a guardian under section 13-702 of the Estates and Trusts Article, it follows that
the circuit court committed error when it: (1) ordered Susan W. to pay a third party $5,000
to make a determination as to whether someone, other than Susan W., should be the guardian
of the children; and (2) holding Susan W. in contempt for failing to make the $5,000
payment. We therefore shall vacate: (1) the portion of the order entered on July 25, 2013,
that directed Susan W. to pay Dr. Snyder monies; (2) the order entered on October 25, 2013,
entering judgment in the amount of $5,000 in favor of Dr. Snyder and against Susan W.; and
(3) the order entered October 25, 2013 holding Susan W. in contempt for failing to pay
$5,000 to Dr. Snyder.
IV.
DENIAL OF SUSAN W.’S MOTION FOR ISSUANCE OF A WRIT OF HABEAS
CORPUS
Susan W.’s motion for a writ of habeas corpus requested the court to issue a writ
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“directing temporary guardians, Darrin Wolfe and Hilary Wolfe, in whose custody [Zealand
W. and Sophia W.] now are as a consequence of a temporary guardianship order issued by
this [c]ourt . . ., to produce the children and appear with them before this [c]ourt to show
cause why the children should not immediately be returned to their mother.” According to
Susan W.’s motion, a writ of habeas corpus was authorized pursuant to CJ, section 3-
702(a),which reads:
A person committed, detained, confined, or restrained from his lawful liberty
within the State for any alleged offense or under any color or pretense or any
person in his behalf, may petition for the writ of habeas corpus to the end that
the cause of the commitment, detainer, confinement, or restraint may be
inquired into.
(Emphasis added).
The circuit court denied Susan W.’s motion for the issuance of a writ of habeas
corpus. Within thirty days, Susan W. filed an appeal to this Court from the denial of that
writ.
In her brief, Susan W. assumes that she is entitled to file an appeal from a denial by
the circuit court of a writ of habeas corpus. But an “appeal may be taken from a final order
in a habeas corpus case only where specifically authorized by statute.” Gluckstern v. Sutton,
319 Md. 634, 652 (1990). In Gluckstern, the Court of Appeals identified four statutes that
either permit appeals or permit an application for leave to appeal in habeas corpus cases.
First, CJ, section 3-707 allows a defendant who seeks a writ of habeas corpus because he or
she has been denied bail or because excessive bail has been set, to file an application for
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leave to appeal the denial of the writ. Second, section 9-110(c) of the Criminal Procedure
Article (“CP”) allows an appeal to this Court from the denial of habeas corpus relief in
extradition cases. Third, CJ, section 3-706 allows an appeal when a writ of habeas corpus
is issued on the grounds that the law under which the petitioner is held is unconstitutional.
Fourth, CP section 7-107, which is part of the Post Conviction Procedure Act, allows a
habeas corpus appeal in certain criminal cases. None of these four exceptions are even
arguably applicable here. Thus, Susan W. had no right to file an appeal to this Court from
the circuit court’s denial of the writ of habeas corpus in this case.6
V.
6
Even if Susan W. did have a right to appeal the denial of the writ, the circuit court
clearly did not err in failing to grant it. The writ could be issued pursuant to the statute
upon which Susan W. relied [i.e., section 3-701 of the Courts & Judicial Proceedings
Article] if she could show that the minor children were being detained in the state of
Maryland. Here, it was undisputed that the children were located in North Carolina.
Appellant argues in her brief that a writ of habeas corpus directing that the
children be immediately returned to Maryland, was authorized by Family Law Article,
sections 5-603(2) and section 5-606(a). We disagree. The sections of the Family Law
Article upon which Susan W. relies do not apply to this matter. Those sections control
the placement of children who are sent or brought to another state by a “sending agency”
for placement in foster care “or as a preliminary to a possible adoption.” See FL, section
5-604(a). The children in this case were not sent to North Carolina for “placement in
foster care or as a preliminary to a possible adoption.”
We note that CJ, section 3-701 allows a judge of the Maryland Court of Special
Appeals or the Court of Appeals to issue a writ of habeas corpus. In a separate case, [no.
1514, Sept. Term, 2013], Susan W. applied to a judge of this Court for a writ of habeas
corpus on the same grounds as those advanced in the circuit court. In a written order filed
on October 18, 2013, Judge Douglas R. M. Nazarian, denied the writ on the grounds that
neither the children nor Mr. and Mrs. Wolfe were in Maryland at the time the writ was
requested.
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CONCLUSION
This case shall be remanded to the Circuit Court for Montgomery County. For the
reasons set forth above, we conclude that the circuit court has no authority to appoint a
temporary or permanent guardian of the person of the minor children under section 13-702(a)
of the Estates & Trusts Article. With that in mind, the circuit court should reconsider Susan
W.’s motion to dismiss this case.
APPEAL FROM THE DENIAL OF A WRIT
OF HABEAS CORPUS IS DISMISSED; THE
COURT’S ORDERS HOLDING SUSAN W.
IN CONTEMPT, ORDERING SUSAN W. TO
PA Y $5,000 TO TH E CUSTO D Y
EVALUATOR AND THE ORDER
ENTERING JUDGMENT IN THE AMOUNT
OF $5,000 AGAINST SUSAN W. AND IN
FAVOR OF DR. REBECCA SNYDER ARE
VACATED; CASE REMANDED TO THE
CIRCUIT COURT FOR MONTGOMERY
COUNTY FOR FURTHER PROCEEDINGS
CONSIST WITH THE VIEWS EXPRESSED
IN THIS OPINION; COSTS TO BE PAID
75% BY P. CONWAY TATTERSALL AND
25% BY SUSAN W.
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