102 [81 O p. Att’y
JUVENILE CAUSES
C OURTS AND J UDGES

) J URISDICTI ON AND P ROCEDURE

) U SE OF “W RITS OF A TTACHMENT ”

November 12, 1996
Stephen E. Harris, Esquire State Public Defender
You have request ed our opini on whe ther the issua nce o f certain “w rits of att achmen t” by the Circ uit Court for Howard County, sitting as the j uvenile court, is aut horized by law . Ou r opin ion is that a “w rit of att achment” would be a lawful me ans b y w hich a child is takeninto custody only if the w rit is issued after the juvenile cou rt has obtaine d juri sdict ion over t he c hild through the filing of a petition under §3-812 of the C ourts and Judici al Procee dings (“ CJ”) Ar ticle, M ary land Co de.

I

Use of Writ s of At tachment
As we understand t

he pract ice in Howard County, offi cers of the Howard County Polic e Department occas ionally seek “writ s of attach me nt” for the question ing and p rocessing o f children w ho are suspect ed of com mitting delinqu ent acts. The p olice officer appe ars befo re a juve nile m aster an d sub mits a n “affid avit of p roba ble cau se.” The affidav it s et s forth the facts that, in the officer’s judg me nt, est abl ish pro bable caus e to be lieve th at the ju venile com m itted delin que nt ac ts. The master, after

reviewing t

he affi davi t and heari ng any additi onal facts from the officer, recom men ds the issuanc e of a writ of att ach m ent. A circuit court j udge then re views and si gns an “orderfor w rit of attach me nt.” In th e exa mp les pro vided to us, this ordercommands the poli ce to t ake the j uvenile into cus tody, “ giving notice to the child’ s parent s, guar dian, or cu stodian , and th e on- duty intake offi cer of t

he Departmentof Juveni le Justice of such action, and to process the res pondent fol lowing normal pol ice pro ced ure s.”Gen. 102] 103

1 Rule 1-202(c) defines “body att ac hm ent” as follows: “‘Body atta chment’ means a written order issued bya court directing a sheri ff or pe ace offi cer to take custody of and bring bef

ore the court (1) a wit

nes s w ho fails to com ply with a su bpoen a, (2) a materialwitn ess in a crim inal ac tion, or (3 ) a party in a ci vil ac tion who fails to comply with an order of cour t.” The order t

hen describes what is to happen t o the chi ld next. One order t hat we have seen di rects the release of the c hild to h is or her parents, guardian, or cust odian. Another direct s that the chi ld be “deli veredforthw ith to th e Ch ar le s H. Hickey School for detent ion atthat f acil ity pending he arings upon a peti tion f or continued dete ntio n no t later than the [ nex t] co urt d ay ....”
The writ of

atta chment its elf i s iss ued by the Cler k of the Circu itCourt, a ddressed to the Sheriff

of Howard County or any law enforcementoffi cer. The writ r ecit es that probable c ause has been establ ishedfor t aking the child into cust ody, commands the law enforcementoffi cer to take the child into cust ody for “pr ocessi ng foll owing normal poli ce pr oc edur es,” an d direc ts any interim disp ositio n of

the c hild after the e nd o f po lice p roc essin g.

II Authority for U se The only ref

erence to use of a “w rit of attach me nt” in juve nile causes is in a form appended to t he Maryland Rul es . F orm 904 -WA, “W rit of At tachmen t,” directs a she riff “to tak e the [c hild] into custodyand d eliver h im b efore th e Co urt.” T his wr it is limited to the sit uation in which the chi ld is alrea dy a “Respondent, was relea sed in the c ustody of hi s parent , guardi an o r cust odian on recogniz ance pend ing fu rther p rocee ding s, and his paren t, guardian or custodi an has fai led to produce the Respo ndent at a h earing befo re the C ourt....” T he w rit of attach me nt in Form 904 -W A is akin to a “body atta chment ” under Rule 1-202( c), which i s used under specif iedconditions to obtain cust ody of witnesses and parties after a proceeding begins. 1 It is unlike the writ of attachm ent in Ho ward104 [81 O p. Att’y

2 Thus, the w rit of attachmen t in question m ore resembles an arrestwa rran t. See Rule 4-2 12(d). This rul e, l ike the rest of Titl e 4 of the M ary land Ru les, d oes not app ly to juv enile cau ses. In re Vic tor B. , 336 M d. 85 , 646 A.2 d 10 12 ( 199 4). County, how ever, w hich is u sed to obtain custo dy o f a child before a proceeding begins. 2
The Juvenile Causes Act, CJ T itle 3, Subtitle 8, contains a provisi on describing the mechani sm for taking a chil d into cus tody. CJ §3-8 14(a ) autho rizes a c hild to be taken into c ustody “byany of the fol lowing methods”:

(1) Purs uant to an or der o f the co urt; (2) By a l aw enforcement of ficer pursu ant to th e law of arre st; (3) By a law enfo rcem ent o ff icer or other personauthori zed by the court if he has reaso nable grounds to believ e that th e child is in immediate danger

from his sur

r oundings and that his re mo val is nece ssary f or his protection; or (4) By a law enforc ement offi cer of other personauthori zed by the court if he has reaso nable grou nds to believ e that th e child has r un away from his pare nts, guardian, or legalcustodi an. In 60 Opinions of

the Att orney General

419 (1975), Attorney General Bu rch co nclud ed tha t a m echa nism for tak ing a c hild into custodywas improp er if i t was outsi de the four methods ident ifi ed in CJ §3 -814(a). The parti cular method a ddressed in that opinion

) the is suance of ar

rest warrants by Distri ct Court Commissioner s
) wa s not authori zed by CJ §3-814(a) and was inconsi stent with the proceduralrequ irem ents of the J uven ile Ca uses A ct. 60 Opinions of the Attorney General

422-24.Gen. 102] 105
Of the fou r grou nds s tated in CJ § 3-81 4(a) fo r taking a child into custody, the la st three are w holly independent of a writ

of atta chment or other cou rt action. Und er the law o f arr e st, for exa m ple, a police offi cer “may arres t a pers on with out a w arrant if the offi cer has pr obable caus e to bel ieve a f elony has bee n committed or att empted and t hat such per son has committed or atte mpted to c omm it a felony w hether or no t in the officer’s pre sence or view.” Article 27, §594B(c). If an of ficer may take a child into cus tod y un der the la w o f arre st, a w rit of a ttach m ent, i f valid, wo uld m erely g ive the officer a ddit ional a uthori ty; a wri t of attac hm ent, if

inv alid, w oul d be im m ateri al. Thus, the val idit

y of a writ

of attachm ent m atte rs only i f the exclusi ve basis for taking a c hild into custody is CJ §3-8 14(a)(1), “[p]ur suantto an ord er o f the cou rt.” A w rit of attach me nt is indeed issued by th e clerk pursu ant to a n ord er of th e cou rt

)namely, an orderfor w rit of attach me nt. This obser vation, however, cannot end the an al ys i s, be caus e t he t erm “o rd er

of t he co urt ” mu s t be underst ood to mean an order t hat the court has juri sdict ion to is sue. An act ion of

the juve nile c ourt i s inval id if that c ourt has no juri sdict ion. See , e.g., Fra nklin v. State , 264 Md. 62, 285 A.2d 616 (1972). “It is w ell es tabli she d pr incip le of law ,” wrote the Court

of Appeal s in 1820, “that the proceedi ngs of any t ribunal , not having juri sdict ion over the s ubject matter which it prof

esses to decide, are void .. ..” Wickes’ Less ee v. Caulk, 5 H. & J. 36, 42 (182 0). Hence, in our opi nion, t he deter minative que sti on is whether the juvenile cou rthas jur isdi ction ove r the chi ld at the time that the orderfor writ of attachm ent is issued. Un der CJ § 3-804(a), the co urt has juri sdict ion “over a child a llege d to be de linquent .” See In re Vale rie H. , 31 0 Md . 113, 117, 527 A.2d 4 2 (1987 ) (juvenile court juri sdict ion is “acquired” purs uantto CJ §3-804(a)) . Under CJ §3- 812( a), a pet iti on fil ed in juve nile c ourt i s the means by which a child is allege d to h ave c om mitted a delin quen t act. See also CJ §3- 808(b) (“If

delinque ncy is al leged . .., the petition ... shall be filed in the c oun ty w her e the alleg ed a ct oc cur red ....”). “[U]nderthe juvenile sub title,” wrote the Co urt of S pecial Appeals, “w e belie ve tha t an alleg ation o f delin q uency is made by the fi ling of

a peti tion. ” In re Appeal No. 1038 , 32 Md. App. 239,106 [81 O p. Att’y

3 Rev ised ru les for ju venile proc eedin gs, rece ntly pu bli sh ed at23:14 Md. Reg. P-37 (July 5, 1996), would not change any aspect of this analysi s. 243, 360 A.2d 18 (1976). Therefore , as Att orney General Burch concluded, “a pet iti on mus t be fi led in t he juveni le court

by authori zed persons in o rder for the cou rtto gain j urisdi ction ove r an ind ivid ual.” 60 Opinions of the Attorney General

at 422 -23

. See, e.g., In re Joh ann a F ., 284 M d. 643, 399 A.2d 2 45 (197 9).
This conclusion is consist ent with the elaborate i ntake process setout in CJ §3-810. Si gnifi cantl y, CJ §3-810( c)(1) gives the intake offi cer t he du ty to “m ake a n inq uiry ... as to wh ether th e cou rt h a s juri sdict ion .. ..” Rule 902a authorizes those “having knowledge of facts which may cause a person to be subject to the j urisdi ction of the cour t [to ] fi le a c om plaint with the ... intake officer ....” In gene ral, “[t]he role of t

he intake officer i s to review fully the case so as to dete rmine whethe r i t would be more appropriate ly handle d through i nformal adj ustment or e ven to recommend thatno further actio n be take n.” In re Steve n B. , 84 Md. App. 1, 8, 578 A. 2d 223 (1990). To pa raphrase the C ourt of Spec ial Appe als, a juvenile court “may not adopt a policy which ignores, limits, or restric ts the intake offi cer’s role in the juve nile c ause proces s.” Id

. Under the H ow ard C oun ty prac tice, the w rit of attach me nt is issued prior to the f iling of a petition and pri or to any inquiry by t he intake o ffi cer about

juri sdict ion. Under t

hese circumstances, the juven ile cour t’s orde r for w rit of att achment is not “an order

of the cour t” under CJ §3-814(a )(1), be cause the court lacks j urisdi ction over the c hild at

that time. 3

III

Conclusion In summary, it

is our opinion that

a writ of atta chment serves as a lawful ba sis f

or taking a chil d into cus tody only af ter t he juven ile court has obtaine d juri sdict ion of t he chil d throughthe fi ling of a petition. Prior t o that time, a polic e office r ma y take a child intoGen. 102] 107 custodypursuant

to the l aw of arres t, a s author ized i n CJ §3- 814(a)(2), or underthe ci rcumstances identi fied in CJ §3-814(a)( 3) and (4). J. Joseph C urran, Jr. AttorneyGeneral
Jack Sch wa rtz Chief Counsel Opinions and Advic e