IN THE INTEREST OF M. F., A CHILD (FATHER).
MCFADDEN, P. J., RAY and RICKMAN, JJ.
father of minor child, M. F., appeals from a juvenile court
order purporting to temporarily modify the permanent
guardianship of M. F. by, inter alia, granting full custodial
powers to the father. While not challenging the grant of
custody, the father contends that the juvenile court erred by
attempting to retain jurisdiction over the case and in doing
so, granting visitation to the former guardians and ordering
the father to undergo counseling. The father also contends
the juvenile court erred by granting the former guardians
attorney fees. For the following reasons, we affirm with
direction in part and reverse in part.
In January 2012, the Juvenile Court of Douglas County put M.
F. under a permanent guardianship, finding that the young
girl was deprived as a result of problems that both of her
parents had with substance abuse. A little more than two years
later, her father filed a petition in the Superior Court of
Gwinnett County, alleging that M. F. and her guardians are
residents of Gwinnett County, that the Gwinnett County court,
therefore, has jurisdiction of matters involving the custody
of M. F., that the father has resolved his problems with
substance abuse, that he now is a fit parent, and that he
ought to have custody of his daughter. Although the petition
was denominated a "complaint for custody, " the
Gwinnett County court construed it as a petition to modify,
vacate, or revoke the guardianship pursuant to OCGA §
15-11-244. As such, the Gwinnett County court concluded that
the Juvenile Court of Douglas County properly had
jurisdiction of the petition, and it transferred the petition
to Douglas County. There, the guardians filed a motion to
dismiss the petition, contending that it failed to state a
claim upon which relief could be granted because, they
argued, a change in the circumstances of a parent is no basis
for a modification, vacatur, or revocation of a permanent
guardianship. The Juvenile Court of Douglas County granted
the motion to dismiss, and the father appeal[ed].
(Footnotes omitted.) In re M. F., 298 Ga. 138-139
(780 S.E.2d 291) (2015).
Georgia Supreme Court held that the father's petition was
properly transferred to the juvenile court but that the
juvenile court erred when it dismissed his petition for
failure to state a claim upon which relief could be granted,
and in awarding attorney fees to the guardians. In re M.
F., 298 Ga. at 140-146 (1) and (2). The case was
remanded to the juvenile court and, following a hearing, the
juvenile court entered an order purporting to temporarily
modify the permanent guardianship.
juvenile court granted a "temporary modification of the
permanent guardianship" which changed custody of M. F.
from the former guardians to her father. In its order, the
juvenile court also granted the former guardians visitation
two weekends a month and over school vacations and
holidays. The father was ordered to pay attorney
fees to the former guardians because he originally filed the
complaint in the wrong county.
father filed an application in this Court for interlocutory
review, which we granted. While the father's application
was pending, the former guardians filed a motion in the
juvenile court for clarification of its order modifying the
permanent guardianship. Following a hearing, the juvenile
court issued an amended order modifying the permanent
guardianship. In the amended order, the juvenile court, in
addition to granting the former guardians increased
visitation and requiring the father to undergo a year of
counseling, stated that the "[f]ather is vested with
full custodial powers, rights and control [of M. F.] as
contemplated in a Modification of Custody in Superior
Court." Additionally, the amended order stated that
"[The juvenile court] chose not [to] dissolve the
Permanent Guardianship as custody of the child would vest in
[the Mother] and require further legal action."
father contends that the juvenile court erred by granting
visitation to the guardians and ordering the father to
undergo counseling. Specifically, he argues that while the
juvenile court's order was denominated as an order
modifying the permanent guardianship, in effect, it revoked
the guardianship and thus left the juvenile court without
authority or jurisdiction to place the complained of
restraints upon the father's custodial
rights. We agree.
Georgia law, permanent guardianship orders shall: "[n]ot
be subject to review by the [juvenile] court except as
provided in [OCGA § 15-11-244]" and
"[e]stablish a reasonable visitation schedule which
allows the child adjudicated as a dependent child to maintain
meaningful contact with his or her parents[.]"
OCGA § 15-11-242 (a) (2) and (3) (emphasis supplied).
Pursuant to OCGA § 15-11-244 (a), "[t]he [juvenile]
court shall retain jurisdiction over a guardianship action .
. . for the sole purpose of entering an order
following the filing of a petition to modify, vacate, or
revoke the guardianship and appoint a new guardian."
reviewing the juvenile court's order, we are mindful that
orders "are construed according to their substance and
function and not merely by nomenclature." Forest
City Gun Club v. Chatham County, 280 Ga.App. 219, 220
(633 S.E.2d 623) (2006). See Lewis v. City of
Savannah, 336 Ga.App. 126, 129 (1), n.2 (784 S.E.2d 1)
(2016). Applying this maxim, the substance of the juvenile
court's order granted full custodial powers of M. F. to
the father. The father cannot have full custodial powers
while the permanent guardianship is still in place because
"[f]or so long as an order of permanent guardianship
remains effective, permanent custody of the child is
committed to the permanent guardian as a matter of law."
In re M. F., 298 Ga. at 140 (1). Under Georgia law,
once a permanent guardianship has been awarded, the guardian
shall have the exclusive power to "[t]ake custody of the
person of the minor and establish the minor's place of
dwelling within this state." OCGA § 29-2-22 (a)
(1); see also OCGA § 15-11-242 (b). It follows that once
full custody of a minor is returned to a natural parent, the
guardianship ceases to exist. Accordingly, the juvenile
court's order, while denominated as only a modification
of the permanent guardianship, in effect revoked the
permanent guardianship when it transferred full custody of M.
F. from the former guardians to the father. See generally
In re M. F., 298 Ga. at 140 (1).
the permanent guardianship was revoked, the juvenile court no
longer had jurisdiction over this case. See OCGA §
15-11-244 (a). Thus, we affirm the juvenile court's order
revoking the guardianship and remand this case with the
direction that the juvenile court amend its order to remove
the additional conditions imposed upon the father by the
father contends that the juvenile court erred by granting the
former guardians attorney fees.
Georgia Supreme Court has already reversed the juvenile court
for awarding attorney fees to the former guardians "on
the ground that the [father's] petition was without any
basis as outlined in OCGA § 15-11-244."