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In re Adoption/Guardianship of Tracy K.

Court of Appeals of Maryland

August 23, 2013

IN RE: ADOPTION/GUARDIANSHIP OF TRACY K.

Harrell Battaglia Greene [*] Bell [*] Murphy Raker, Irma S. (Retired, Specially Assigned) Cathell, Dale R. (Retired, Specially Assigned), JJ.

OPINION

Bell, C.J.

This case explores whether an Orphans' Court, prior to October 1, 2009 (see footnote 2 infra), had jurisdiction to decide Petitions for Guardianship of the Person and, if so, under what circumstances. The petitioner, Jacqueline D. K., filed in the Orphans' Court for Prince George's County a petition requesting guardianship of her nephew, Tracy K. A judge of that court dismissed the petition on the ground that the Orphans' Court lacked jurisdiction to hear the petition. The petitioner appealed to the Court of Special Appeals; however, we issued a writ of certiorari before the intermediate appellate court decided the appeal. In Re Adoption/Guardianship of Tracy K., 403 Md. 612, 943 A.2d 1244 (2008). The issue on appeal is whether the Orphans' Court possessed jurisdiction over Petitions for Guardianship of the Person, where at least one of the natural parents is alive, parental rights have not been terminated, and no testamentary appointment has been made. We hold that the Orphans' Court did not have jurisdiction in this situation and affirm the Orphans' Court's dismissal of the petition.[1]

I.

Jacqueline D. K., the petitioner, filed a Petition for Guardianship of the Person in the Prince George's County Orphans' Court to obtain legal guardianship of her nephew, Tracy K. Tracy K., born on August 8, 1991, had lived with his father, Tracy S. ("Father"), prior to the summer of 2007. At the time of the filing of the instant petition, Tracy K's mother (the petitioner's sister) was deceased. With the alleged consent of the Father, Tracy K. decided to live with the petitioner until he turned eighteen. Therefore, the petitioner initiated the guardianship action that is at the heart of this case. After a preliminary review, the Orphans' Court scheduled a hearing and sent notices to all interested parties.

At the hearing, the petitioner, appearing pro se, testified that no legal proceedings were on-going currently (or had occurred) seeking to terminate the Father's parental rights. She testified further that the Father refused to help with Tracy K.'s maintenance or to consent to the guardianship. Jacqueline D. K. affirmed also that Tracy K. was not entitled to any funds or property from his Mother's, or any, estate.

The Orphans' Court dismissed the petition for lack of jurisdiction. The 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 been terminated."

Petitioner filed timely a Notice of Appeal to the Court of Special Appeals. Before the intermediate appellate court decided the appeal, a petition for writ of certiorari was filed with the Court of Appeals. We granted the petition to consider the following question:

"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?"

403 Md. 612, 943 A.2d 1244 (2008).

II.

The Maryland Constitution created the Orphans' Courts and granted the Maryland General Assembly the power to determine the Orphans' Courts' authority. Md. Const. art 4, §§ 1, 40 (c). The Orphans' Courts have the special and limited subject matter jurisdiction determined by the Legislature. Kaouris v. Kaouris, 324 Md. 687, 693, 598 A.2d 1193, 1195–96 (1991). Maryland Code (1974, 2011 Repl. Vol.), Estates & Trusts Article ("ET"), § 2-102 (a) grants the Orphans' Courts the power to "conduct judicial probate, direct the conduct of the personal representative, and pass orders which may be required in the course of the administration of an estate." ET § 2-102(a).

In ET Title 13 are contained specific laws promulgated for the protection of minors. ET § 13-105 (a) states that "[t]he orphans' courts and the circuit courts have concurrent jurisdiction over guardians of the person of a minor and over protective proceedings for minors." Maryland Code (1974, 2008 Repl. Vol.), ET § 13-105 (a).[2] ET § 13-106 (a) grants the Orphans' Court authority over guardianships of property of a minor, providing that "[a]n orphans' court has full power to secure the rights of a minor whose estate is being administered by a guardian under its jurisdiction." ET § 13-702 (a)[3] permits the Orphans' Court to appoint, upon petition of any person interested in the minor's welfare, a guardian of the person of an unmarried minor, but only "[i]f neither parent is serving as guardian of the person and no testamentary appointment has been made." Nevertheless, ET § 13-702 (a) makes clear that it "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." ET § 13-701[4] authorizes the surviving parent of a minor, who is not prohibited by agreement or court order, to make a testamentary appointment. The Maryland Code, in both Title 2 and Title 13 of the Estates and Trusts Article, in almost identical language, limits explicitly the Orphans' Court's jurisdiction. ET § 2-102 (a) of that Article instructs, "[t]he court may not, under pretext of incidental power or constructive authority, exercise any jurisdiction not expressly conferred, " (emphasis added) while ET § 13-106 (b) provides: "The orphans' court, under the pretext of incidental power or constructive authority, may not exercise jurisdiction not expressly conferred by law."

We have held that a court has subject matter jurisdiction, referred to also as fundamental jurisdiction, when the Legislature grants a court "the power to act with regard to a subject matter, " Pulley v. State, 287 Md. 406, 416, 412 A.2d 1244, 1249 (1980), and to "render a judgement over a class of cases within which a particular one falls." Salvagno v. Frew, 388 Md. 605, 616 n.4, 881 A.2d 660, 666 n.4 (2005) (citing First Federated Co. ...


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