In the Interest of M.F., A Child. v. << (2015)

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 ,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 § 15–11240 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 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 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 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 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 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,” 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 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 permit a modification, vacatur, or revocation of a permanent guardianship, the statute requires “a material change in the circumstances of the child ․ or the guardian.” OCGA § 15–11–244(c). When we consider the meaning of a statute, of course, “we must presume that the General Assembly meant what it said and said what it meant,” Deal v. Coleman, 294 Ga. 170, 172(1)(a), 751 S.E.2d 337 (2013) (citation and punctuation omitted), and for that reason, “we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” FDIC v. Loudermilk, 295 Ga. 579, 588(2), 761 S.E.2d 332 (2014) (citation and punctuation omitted). Accordingly, the common and customary usages of the words of a statute are important, Hendry v. Hendry, 292 Ga. 1, 2–3(1), 734 S.E.2d 46 (2012), but so is their context. Smith v. Ellis, 291 Ga. 566, 573–574(3)(a), 731 S.E.2d 731 (2012). As we have explained, “[f]or context, we may look to other provisions of the same statute, the structure and history of the whole statute, and the other law—constitutional, statutory, and common law alike—that forms the legal background of the statutory provision in question.” May v. State, 295 Ga. 388, 391–392, 761 S.E.2d 38 (2014) (citations omitted).

As important context for OCGA § 15–11–244, we note that the law generally recognizes a presumption that a child ordinarily belongs in the care and custody of her parents. See Stone v. Stone, 297 Ga. 451, 454, 774 S.E.2d 681 (2015). Moreover, in this case, the juvenile court was authorized to order a permanent guardianship in the first instance only because M.F. was shown, as of January 2012, to be a “deprived” child because she was without a parent then fit to be responsible for her care and custody. See former OCGA § 15–11–30.1(a)(2)(A) (2012) (permanent guardianship authorized only following “an adjudication that the child is deprived”). Given the general presumption of parental custody, one can hardly imagine a change in circumstances more material for such a child than the subsequent reappearance of a parent fit to be charged with her care and custody, thereby rendering the child no longer a “deprived” or “dependent” child. That a change in the circumstances of a parent results in a previously unfit parent now being fit to have responsibility for the care and custody of his child may amount to “a material change in the circumstances of the child,” as these words most naturally would be understood in the relevant context. That, we conclude, is the most reasonable understanding of OCGA § 15–11–244(c).¹² ,¹³

Moreover, if we were to understand OCGA § 15–11–244(c) as the guardians do, it would pose serious questions about the constitutionality of the statutes concerning permanent guardianships. The presumption that children ordinarily belong in the care and custody of their parents is not merely a presumption of the statutory and common law, but it has roots in the fundamental constitutional rights of parents. The Constitution secures the fundamental “right of parents to direct the upbringing of their children,” Troxel v. Granville, 530 U.S. 57, 65(II), 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and it “protects a private realm of family life which the state cannot enter without compelling justification.” Arnold v. Bd. of Ed. of Escambia County, 880 F.2d 305, 313(III)(A)(2) (11th Cir.1989) (citation omitted). As we have explained, “parents have a fundamental liberty interest in the care, custody, and management of their children,” Clark v. Wade, 273 Ga. 587, 593(III), 544 S.E.2d 99 (2001) (citation omitted), and “[t]here can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to [his] offspring.” Nix v. Dept. of Human Resources, 236 Ga. 794, 795, 225 S.E.2d 306 (1976). Unless and until the relationship of parent and child is lawfully terminated, parents retain parental rights, even in circumstances in which they properly may have lost parental power:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost [at least] temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 753–754(II), 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). For these reasons, if the law did not afford the now fit parent of a child under a permanent guardianship any opportunity at all to revisit the question of a guardianship and thereby regain some or all of his parental power, it would raise serious constitutional questions. See generally Brooks v. Parkerson, 265 Ga. 189, 191–194(2), 454 S.E.2d 769 (1995) (finding grandparent visitation statute to work an unconstitutional infringement of parental rights).

Accordingly, to the extent that there were any ambiguity about the meaning of OCGA § 15–11–244(c) in this context, we would invoke the doctrine of constitutional doubt and construe the statute so as to avoid the serious constitutional concerns that would otherwise be raised. See Haley v. State, 289 Ga. 515, 521–522(2)(b), 712 S.E.2d 838 (2011). See also Stone, 297 Ga. at 455, 774 S.E.2d 681 (invoking doctrine of constitutional doubt with reference to the meaning of statute concerning child custody). As we explained in Haley,

The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality. This approach not only reflects the prudential concern that constitutional issues not be needlessly confronted, but also recognizes that the legislature, like this Court, is bound by and swears an oath to uphold the Constitution. The courts will therefore not lightly assume that the legislature intended to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.

289 Ga. at 522(2), 712 S.E.2d 838(b) (citation and punctuation omitted). See also Clark v. Martinez, 543 U.S. 371, 381(II), 125 S.Ct. 716, 160 L.Ed.2d 734 (2005); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). Here, even if it were not the only reasonable way in which to understand the statute, it certainly is not unreasonable—as we explained earlier—to understand OCGA § 15–11–244(c) to include the restoration of fitness to a previously unfit parent as among the material changes in the circumstances of a child that would permit a modification, vacatur, or revocation of a permanent guardianship. The doctrine of constitutional doubt would point toward such an understanding of the statute.

Here, the petition of the father alleges the material change in circumstances that would be required to permit the modification, vacatur, or revocation of the permanent guardianship of M.F. Accordingly, his petition states a claim under OCGA § 15–11–244 upon which relief might properly be granted, so long as the father proves that material change in circumstances clearly and convincingly, and so long as he proves as well that his custody of M.F. is now in her best interest. Whether the father can prove those things is a question for the juvenile court. But the juvenile court erred when it dismissed the petition, and we reverse the judgment of dismissal. The trial court also erred when it awarded attorney fees to the guardians on the ground that the petition “was without any basis as outlined in OCGA § 15–11–244,” and so, we reverse the award of attorney fees as well.

Judgment affirmed in part and reversed in part.

BLACKWELL, Justice.

All the Justices concur.