In re Interest of M.F., No. S15A0840.

CourtSupreme Court of Georgia
Writing for the CourtBLACKWELL, Justice.
Citation780 S.E.2d 291,298 Ga. 138
Parties In the Interest of M.F., A Child.
Decision Date23 November 2015
Docket NumberNo. S15A0840.

298 Ga. 138
780 S.E.2d 291

In the Interest of M.F., A Child.

No. S15A0840.

Supreme Court of Georgia.

Nov. 23, 2015.


780 S.E.2d 292

Tom Pye, Law Offices of Tom Pye, P.C., Norcross, for appellant.

Douglas Nathan Fox, Fox Firm, P.C., Lawrenceville, for appellee.

780 S.E.2d 293

BLACKWELL, Justice.

298 Ga. 138

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

298 Ga. 139

substance abuse.1 ,2 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 appeals.3 We affirm in part and reverse in part.

1. To begin, the father claims that his petition was properly filed in Gwinnett County and that the transfer of his petition to Douglas County was in error. We disagree. It is true, as the father notes, that superior courts generally have original jurisdiction of petitions for the permanent custody of a child. See Ertter v. Dunbar, 292 Ga. 103, 104–105, 734 S.E.2d 403 (2012). Nevertheless, juvenile courts have original jurisdiction of proceedings under OCGA § 15–11–240 et seq. for permanent guardianships. See OCGA § 15–11–10(3)(B) (juvenile court "shall be the sole court for initiating action ... [i]nvolving any proceedings ... [f]or permanent guardianship brought pursuant to

780 S.E.2d 294

the provisions of Article 3 of this chapter"); OCGA § 15–11–240(a) ("the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child adjudicated as a dependent child in

298 Ga. 140

accordance with this article").4

When a juvenile court enters an order of permanent guardianship, it "shall retain jurisdiction over [the] 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." OCGA § 15–11–244(a).5 The superior courts have concurrent jurisdiction over permanent guardianships, but only with respect to the "enforcement or modification of any child support or visitation order entered [in connection with the permanent guardianship]." OCGA § 15–11–244(b).6 And for 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. See OCGA § 15–11–242(b) ("A permanent guardian shall have the rights and duties of a permanent guardian as provided in ... [OCGA § ] 29–2–22...."); OCGA § 29–2–22(a)(1) (guardian has "the exclusive power" to "[t]ake custody of the person of the minor").7 Accordingly, a

298 Ga. 141

superior court has no authority to award permanent custody of a child under a permanent guardianship to anyone other than a guardian, and to secure the permanent custody of such a child, anyone other than a guardian generally must first petition the juvenile court to modify, vacate, or revoke the guardianship.

The "complaint for custody" that the father filed in Gwinnett County fairly can be read as a petition to modify, vacate, or revoke the permanent guardianship,8 see Kuriatnyk

780 S.E.2d 295

v. Kuriatnyk, 286 Ga. 589, 589–590, 690 S.E.2d 397 (2010) ("substance, rather than nomenclature, governs pleadings" (citations and punctuation omitted)), a petition over which the Juvenile Court of Douglas County would have exclusive jurisdiction. Cf. In re M.C.J., 271 Ga. 546, 548, 523 S.E.2d 6 (1999) ("If it appears from an analysis of the pleading that it is actually a disguised custody matter [rather than a deprivation proceeding], then it is outside the subject matter jurisdiction of the juvenile courts."). For this reason, the transfer of the petition to Douglas County was no error. See Ga. Const. of 1983, Art. VI, Sec. I, Par. VIII ("Any court shall transfer to the appropriate court in the state any civil case in which it determines that jurisdiction or venue lies elsewhere."). We, therefore, affirm the transfer of the petition from Gwinnett County to Douglas County.

2. Even if the Douglas County court properly had jurisdiction of his petition, the father contends, it erred when it dismissed the petition for failure to state a claim upon which relief can be granted. With that contention, we agree. The proper grounds for a petition to modify, vacate, or revoke a permanent guardianship are identified in OCGA § 15–11–244(c)9 :

The guardianship shall be modified, vacated, or revoked based upon a finding, by clear and convincing evidence, that there has been a material change in the circumstances of the
298 Ga. 142
child who was adjudicated as a dependent child or the guardian and that such modification, vacation, or revocation of the guardianship order and the appointment of a new guardian is in the best interests of the child.

By his allegation that he has resolved his problems with substance abuse and now "is a fit and proper parent and is able to assume the responsibilities of full custody," the father has alleged, he says, a "material change in the circumstances of the child," sufficient to authorize the juvenile court to set aside the guardianship of M.F. The guardians respond that the entry of an order of permanent guardianship forever stripped the father of his parental rights, and in any event, OCGA § 15–11–244(c) affords the father here no possibility of relief because the father has alleged no "material change in the circumstances of the child," only a change in his own circumstances.

We begin with the nature of the legal relationship that now exists between the father and M.F. Although a permanent guardianship indisputably works a limitation of the parental power of a legal parent by vesting that parental power in the guardian, see OCGA § 15–11–242(b), it does not forever terminate the parental rights of a parent.10 Indeed, a permanent guardianship is allowed in the first instance only to the extent that a termination of parental rights is not warranted. See OCGA § 15–11–240(a)(2) (before entering an order of permanent guardianship, juvenile court must find, among other things, that "termination of parental rights and adoption is not in the best interests of [the] child"). Moreover, the statutory provisions for permanent guardianships expressly contemplate that an earlier ordered permanent guardianship may be revisited upon the "filing of a petition to modify, vacate, or revoke the guardianship and appoint a new guardian,"

780 S.E.2d 296

OCGA § 15–11–244(a), and they contemplate that the permanent guardianship "shall be modified, vacated, or revoked" upon clear and convincing proof of the requisite change in circumstances, accompanied by clear and convincing proof that the modification, vacatur, or revocation is in the best interest of the child. OCGA § 15–11–244(c). No doubt, a permanent guardianship is presumptively permanent, in the sense that the permanent guardians are vested with parental power indefinitely, and a heavy burden is put upon those who would seek to change or undo the guardianship—the

298 Ga. 143

grounds for changing or undoing the guardianship must be proved clearly and convincingly. But the very fact that the statutes contemplate vacating a permanent guardianship altogether—as well as modifying a permanent guardianship or revoking it and appointing a new guardian—signals quite clearly that the statutes do not mean for a permanent guardianship to work a termination of parental rights.11

About the argument that the father only alleges a change in his own circumstances and has failed, therefore, to allege "a material change in the circumstances of [M.F.]," the guardians read OCGA § 15–11–244 too narrowly. It is true that, to...

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47 practice notes
  • In re V. G., A19A0966
    • United States
    • United States Court of Appeals (Georgia)
    • 22 Octubre 2019
    ...The Family, Religious Education, and Harm to Children , 76 Notre Dame Law Rev. 109, 114 (I) (2000).4 See In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a presu......
  • In re V. G., A19A0966
    • United States
    • United States Court of Appeals (Georgia)
    • 22 Octubre 2019
    ...The Family, Religious Education, and Harm to Children , 76 Notre Dame Law Rev. 109, 114 (I) (2000).4 See In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a presu......
  • In re C. H., A17A1320
    • United States
    • United States Court of Appeals (Georgia)
    • 27 Septiembre 2017
    ...destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."); In the Interest of M. F., 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a......
  • Borgers v. Borgers, A18A0910
    • United States
    • United States Court of Appeals (Georgia)
    • 18 Octubre 2018
    ...destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."); In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely ......
  • Request a trial to view additional results
46 cases
  • In re V. G., A19A0966
    • United States
    • United States Court of Appeals (Georgia)
    • 22 Octubre 2019
    ...The Family, Religious Education, and Harm to Children , 76 Notre Dame Law Rev. 109, 114 (I) (2000).4 See In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a presu......
  • In re V. G., A19A0966
    • United States
    • United States Court of Appeals (Georgia)
    • 22 Octubre 2019
    ...The Family, Religious Education, and Harm to Children , 76 Notre Dame Law Rev. 109, 114 (I) (2000).4 See In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a presu......
  • In re C. H., A17A1320
    • United States
    • United States Court of Appeals (Georgia)
    • 27 Septiembre 2017
    ...destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."); In the Interest of M. F., 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a......
  • Borgers v. Borgers, A18A0910
    • United States
    • United States Court of Appeals (Georgia)
    • 18 Octubre 2018
    ...destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."); In the Interest of M. F. , 298 Ga. 138, 144-45 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely ......
  • Request a trial to view additional results
1 books & journal articles

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