FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 24, 2018
In the Court of Appeals of Georgia
A18A0264. IN THE INTEREST OF M. F., A CHILD (FATHER).
RICKMAN, Judge.
The 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.1 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 SE2d 291) (2015).
The 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
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“M. F. was born in May 2008 to unmarried parents, but her relationship with
her father was legitimated in January 2011. Although the guardians were awarded
custody of M. F. in January 2012, her father enjoyed certain visitation rights under
the order of permanent guardianship.” In re M. F., 298 Ga. at 139, n. 2.
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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.
The 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.2 The father was ordered
to pay attorney fees to the former guardians because he originally filed the complaint
in the wrong county.
The 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
2
Despite the juvenile court’s attempt to grant visitation to the former
guardians, the plain language of OCGA § 15-11-244 (a) (3) authorizes the court to
allow visitation between a child in the custody of a guardian with his or her parent in
order to encourage “meaningful contact.”
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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.”
1. The 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.3 We agree.
Under 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
3
Initially, we note that the neither the guardians, nor the child, through her
attorney, cross-appealed and there is no challenge to the trial court’s grant of full
custodial rights to the father. Nevertheless, upon our full review of the record, there
was more than sufficient evidence to support the grant of custody to the father,
including testimony about his addiction recovery, marriage, finances, and
employment, in addition to the guardian ad litem’s recommendation that it was in the
best interests of the child for the permanent guardianship to be revoked.
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“[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.” (Emphasis supplied).
When 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 SE2d 623)
(2006). See Lewis v. City of Savannah, 336 Ga. App. 126, 129 (1), n.2 (784 SE2d 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)
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(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).
Once 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 court.
2. The father contends that the juvenile court erred by granting the former
guardians attorney fees.
The 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.” (Punctuation
omitted.) In re M. F., 298 Ga. at 146 (2).
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On remand, the juvenile court awarded attorney fees on the basis that “the
action should have been filed [in the juvenile court] and not Gwinnett County.” While
the juvenile court did not specifically reference a statute authorizing the award, the
guardians requested the fees pursuant to OCGA § 9-15-14.
OCGA § 9-15-14 authorizes the assessment of litigation costs and
attorney fees for frivolous actions and defenses. The standard of review
for awards under subsection (a), for claims made despite a complete
absence of any justiciable issue of law or fact, is the ‘any evidence’ rule,
and the standard of review for motions under subsection (b), for actions
lacking substantial justification or interposed for delay or harassment,
or unnecessarily expanding the proceedings, is the ‘abuse of discretion’
rule.
Wallace v. Noble Village at Buckhead Sr. Housing, LLC, 292 Ga. App. 307, 310 (664
SE2d 292) (2008). See OCGA § 9-15-14 (a) and (b).
We doubt that juvenile courts have authority to award attorney fees under
OCGA § 9-15-14. See In the interest of T. M. M. L., 313 Ga. App. 638, 640 (722
SE2d 386) (2012). But regardless, this attorney fee award cannot stand. It is plain
from our Supreme Court’s discussion of the issue, which covers two full pages of the
official reporter, In re M. F., 298 Ga. at 139-141 (1) that the father’s initial filing was
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not done in the absence of any justiciable issue of law or fact and that it did not lack
substantial justification.
Judgment affirmed in part with direction; reversed in part. McFadden, P. J.
concurs. Ray, J. concurs in judgment only as to Division 1; otherwise fully
concurring.*
* DIVISION 1 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF APPEALS RULE 33.2.(a).
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