In Re GUARDIANSHIP OF ZEALAND W. and Sophia W.

⁶⁹ JAMES P. SALMON (Retired, Specially Assigned), J. 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 ⁷⁰ children. In support of her position, Susan W. primarily relies on the case of In re: Adoption/Guardianship of Tracy K, 434 Md. 198 , 73 A.3d 1102 (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.

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 ⁷¹ 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.

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 ⁷² 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 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 ⁷³ 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 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 Services may successfully file a court petition[,] without parental consentí,] for the appointment of a guard ⁷⁴ ian 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 [ 577 A.2d 14 ] (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 & Trusts Article by the Attorney General of Mary ⁷⁵ land, 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 13-702(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. ⁷⁶ 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 custodyE 3 1 and guardianship” of the minor children. Among other things, Dr. Snyder was given the task of producing “an 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 ⁷⁷ 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 [cjourt 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 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, ⁷⁸ 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. 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 “[depriving 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 ⁷⁹ after entry of the ... order from which the appeal is taken.”).

See also Stevens v. Tokuda, 216 Md.App. 155, 164-65 , 85 A.3d 321 (2014), and In re Ariel G., 153 Md.App. 698, 704 , 837 A.2d 1044 (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 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 , 577 A.2d 14 , 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, ⁸⁰ welfare and education; and (2) have the same powers and duties in relation to the child.” 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