                                 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



      1
        “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.”

                                           3
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)

                                            5
(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).



                                             6
       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




                                            7
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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