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 14 birthday, and if the person otherwise is qualified, the court

th

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-

In her memorandum in support of her dismissal motion, Susan W. (“Mother”) also

1

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 threebedroom 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 and guardianship” of the

[3]

minor children. Among other things, Dr. Snyder was given the task of producing “an

Substantively, the oppositions of the Best Interest Attorney and Mr. Tattersall

2

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.

This case is not now, nor has it ever been, a custody case.

3

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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 asforensic interviews “asshe 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. Id. Tracy K. lived with his father, Tracy S. (hereinafter

4

“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

The date of Tracy K.’s mother’s death is not disclosed in the opinion by the

4

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 whethersubject 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, which “permits a circuit court to terminate those rights and obligations through

5

a decree of guardianship.” Id. at 175. The court went on to say that a decree of guardianship

Now codified in FL, section 5-301 - 328.

5

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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.

Even if Susan W. did have a right to appeal the denial of the writ, the circuit court

6

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

P A Y $ 5 ,0 0 0 TO TH E C U STO D Y

E V A L U A T O R A N D T H E O R D E R

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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