In March 2007, a petition for temporary letters of guardianship for the minor daughter of Tammie Boddie Mother was filed in the probate court by Yolanda Daniels Guardian. Attached to the petition was a notarized written consent signed by Mother. See OCGA § 29-2-6 a. Temporary letters of guardianship were issued in April 2007. In March 2009, Mother filed a petition to terminate the temporary guardianship, Guardian filed a timely objection, and the records were transferred “to the juvenile court, which shall determine, after notice and hearing, whether a continuation or termination of the temporary guardianship is in the best interest of the minor.” OCGA § 29-2-8 b. Mother challenged this “best interest” standard in writing as violative of her constitutional rights. Compare In the Interest of J.R.R. , 281 Ga. 662, 663 641 SE2d 526 2007. After a hearing, the juvenile court rejected that challenge and found by a preponderance of the evidence that the best interests of the child will be served by continuing the temporary guardianship. The juvenile court denied the request to terminate the guardianship without making any finding that such termination would harm the child. Mother appeals from this order. Mother contends that OCGA § 29-2-8 b does not contain sufficient safeguards to protect her fundamental constitutional right to raise her child and that its “best interest” standard should therefore be construed narrowly as in Clark v. Wade , 273 Ga. 587 544 SE2d 99 2001. In Clark , this Court upheld that standard as constitutional when narrowly construed and “applied to custody disputes between a biological parent and custodial third party under OCGA § 19-7-1 b.1.” Clark v. Wade , supra at 588. Such disputes do not implicate a parent’s constitutional rights any more than does the present dispute between a biological parent and a third-party temporary guardian over continuation of the guardianship, since guardianships have at least as great a potential to interfere with parental rights as do awards of custody.
Except with respect to receiving personal property of the minor without becoming her legally qualified conservator, “a temporary guardian shall be entitled to exercise any of the powers of a natural guardian.” OCGA § 29-2-7 a. See also OCGA § 29-3-1 d; Jennifer L. Roberts & William J. Self, II, Ga. Guardian and Ward § 2:7 2009-2010 ed.. “The implication of this provision . . . is that guardians of a minor have the powers . . . otherwise inherent in parenthood.” Guardianship of Doe , 4 P3d 508, 516 VI Haw. 2000. As a result of these broad powers, “custody, even permanent custody, with its attendant responsibilities, is but an incident of guardianship. Consequently, appointment of a guardian supercedes that of a custodian since the latter is contained within the former. Cit.” In the Matter of Bunting , 311 A2d 855, 857 Del. 1973. See also 39 CJS Guardian and Ward § 2. “There are significant similarities between ‘custody’ and ‘guardianship.’ . . . A guardian has the broadest range of the rights and duties of caring for a child, but the right to custody of the child is certainly the principal attribute of guardianship of the person. For practical purposes, however, guardianship and custody are very similar concepts. Both carry with them the privileges and obligations of decision-making and the daily care of the child; the custody decision and the guardianship decision both determine the primary residence of the child.” Emphasis omitted. Cit. Because these concepts share common attributes, we construe the . . . guardianship provision . . . and the custody provision . . . in pari materia in order to determine the appropriate standard to be applied where conflicting claims between parents and non-parents are made in a guardianship hearing. Cit. Guardianship of Doe , supra at 516-517 VI.
