In Re GUARDIANSHIP OF ZEALAND W. and Sophia W.
102 A.3d 837
Md. Ct. Spec. App.2014Background
- Father (David W.) died Sept. 20, 2012; five days later his cousin Conway Tattersall filed an emergency petition in Montgomery County seeking temporary and permanent guardianship of the couple’s two minor children.
- Mother (Susan W.) was alive, living in West Virginia, had a South Carolina divorce history that awarded father custody and required supervised visitation for mother due to past alcohol problems. Mother objected and sought dismissal.
- Circuit Court appointed temporary guardians (Pirrone, then Tattersall, then the Wolfes) and ordered a forensic custody evaluation by Dr. Snyder, apportioning fees $5,000 to each side.
- Mother moved to dismiss for lack of subject-matter jurisdiction under Estates & Trusts §13-702(a) (arguing she was the children’s natural guardian under Family Law §5-203). While the jurisdiction motion was pending, the court ordered payment to the evaluator; mother failed to pay and was held in contempt and a $5,000 judgment entered.
- Maryland Court of Special Appeals: held the circuit court had general subject-matter jurisdiction but lacked statutory authority under ET §13-702(a) to appoint a guardian while a living parent retains parental rights; vacated contempt, judgment and fee orders; dismissed appeal as to denial of habeas corpus for lack of statutory appellate authorization and remanded.
Issues
| Issue | Plaintiff's Argument (Susan W.) | Defendant's Argument (Tattersall/Best Interest Atty) | Held |
|---|---|---|---|
| Whether the court had authority under ET §13-702(a) to appoint a guardian of the person when a living parent has not had parental rights terminated | ET §13-702(a) does not apply because mother is the surviving natural guardian under FL §5-203; only Title 5 Family Law proceedings (termination/guardianship) can divest parental rights | §13-702(a) permits appointment when "neither parent is serving as guardian" and, given mother’s long absence from custody, the court may appoint a guardian | The court has subject-matter power but not authority under §13-702 to appoint a guardian while a living parent’s rights remain; appointment under §13-702 was improper |
| Validity of orders requiring mother to pay evaluator fees and related contempt/judgment for nonpayment | Orders are void/unenforceable because they implement a guardianship process the court lacked authority to run under §13-702 | Fees were proper interim case-management orders and enforceable | Orders compelling payment, the contempt finding, and $5,000 judgment vacated |
| Whether mother could appeal denial of writ of habeas corpus | Denial was appealable as an interlocutory order | Denial of habeas corpus is not appealable here without specific statutory authorization | Appeal from denial of habeas corpus dismissed for lack of appellate authority |
| Appropriate next steps/remand | Case should be dismissed or referred to Department of Social Services for Title 5 proceedings if termination is sought | Case should proceed in circuit court under guardianship/custody procedures including evaluations | Case remanded for further proceedings consistent with opinion; court should reconsider dismissal motion and, if termination of parental rights is sought, proceed under Title 5 Family Law procedures |
Key Cases Cited
- Carroll County Dep’t of Social Servs. v. Edelmann, 320 Md. 150 (1990) (courts lack authority to terminate parental rights except under Family Law guardianship/adoption statutes)
- In re Adoption/Guardianship of Tracy K., 434 Md. 198 (2013) (ET §13-702(a) does not permit courts to appoint guardians over children of living parents whose parental rights have not been terminated)
- Gluckstern v. Sutton, 319 Md. 634 (1990) (appeals from habeas corpus proceedings are limited to specific statutory authorizations)
- Rashawn H. v. Branch, 402 Md. 477 (2007) (standard and burden for terminating parental rights under Title 5 Family Law)