Ex parte R.
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
Background
The child was adjudicated a dependent child by the juvenile court in 2019 in case number JU-19-709.01. The dependency judgment awarded temporary legal custody of the child to the Marshall County Department of Human Resources (“DHR“). DHR subsequently filed a complaint petitioning the juvenile court to terminate the parental rights of the mother; that action was assigned case number JU-19-709.02. The juvenile court appointed attorney Emery D. Massey as the guardian ad litem for the child in both cases.
On April 9, 2020, Massey filed in both cases a “motion for immediate court order to comply with requests of physicians.” In that motion, Massey requested that the juvenile court enter an order allowing for the natural death of the child, who is suffering from an incurable illness known as Batten Disease and from an extremely painful condition known as toxic epidermal necrolysis. On April 10, 2020, the juvenile court, without conducting a hearing, granted the motion in case number JU-19-709.01 by entering an order providing, in pertinent part: “[The child]‘s physicians may place an order to ‘Allow Natural Death’ in his file.” Upon request by the mother, the juvenile court stayed enforcement of that order and set the matter for a hearing on May 4, 2020.
The mother did not provide this court with a transcript of the hearing. The order being challenged by the mother summarizes the hearing as follows. The parties called two attorneys to testify regarding the question whether the juvenile court had jurisdiction to enter a PPEL care order; one testified that the juvenile court lacked subject-matter jurisdiction and the other testified that the juvenile court had sufficient subject-matter jurisdiction. The juvenile court did not receive into evidence any further live testimony. Massey submitted a letter from the child‘s primary treating physician detailing the child‘s terminal condition, the efforts made to treat the child throughout his treatment at a Birmingham hospital, and the recommendation that a PPEL care order allowing for the natural death of the child be placed in the child‘s medical records. In addition, the juvenile court accepted the following stipulations of the parties: that four other physicians who were also treating the child would testify similarly to the contents in the letter from the child‘s primary treating physician and that all four of those physicians agreed that the child should be allowed a natural death for the reasons set out in a letter by one of those physicians; that Massey would testify that it would be in the best interests of the child for a PPEL care order to be placed in the child‘s medical records; that the mother
On May 8, 2020, the juvenile court entered an order (“the challenged order“) in both cases, finding that it had jurisdiction over the controversy and authorizing Massey to act as the representative for the child in executing a PPEL care order. The mother filed a single petition for the writ of mandamus in this court, referencing both cases, on that same date. The juvenile court has stayed enforcement of the challenged order pending this court‘s ruling on the petition.
Standard of Review
“‘Mandamus is an extraordinary remedy and will be granted only where there is “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” ’
”Ex parte Ocwen Federal Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)(quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991)). Mandamus will lie to direct a trial court to vacate a void judgment or order. Ex parte Chamblee, 899 So. 2d 244, 249 (Ala. 2004).”
Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004).
Analysis
I. Jurisdiction of the Juvenile Court
The mother initially argues that the juvenile court lacked jurisdiction to issue the challenged order. As explained above, the matter came before the juvenile court through a motion filed simultaneously in a dependency action and a termination-of-parental-rights action, over which the juvenile court has statutory jurisdiction. See
The NDA was enacted in 1981 to authorize physicians to follow the directives of adults regarding the withholding or withdrawal of life-sustaining treatment. See Act No. 81-722, Ala. Acts 1981. In 2018, the legislature passed the Alex Hoover Act (“the AHA“), Act No. 2018-466, Ala. Acts 2018, which governs the application of the NDA in cases involving a “qualified minor,” i.e., a minor “who has been diagnosed as a terminally ill or injured patient and whose diagnosis has been confirmed by at least one additional physician who is not the patient‘s attending physician.”
“The representative of a qualified minor may execute a directive with respect to the extent of medical treatment, medication, and other interventions available to provide palliative and supportive care to the qualified minor by completing and signing an Order for PPEL Care form. Once completed and signed by the representative, the attending physician may complete and sign the executed directive and enter the directive into the medical record of the qualified minor. Once properly entered and received into the medical record, the directive is deemed a valid Order for PPEL Care ....”
A PPEL care order is
“[a] directive that, once executed by the representative of a qualified minor and entered into the record by the attending physician of the qualified minor in accordance with
Section 22-8A-15 , becomes the medical order for all health care providers with respect to the extent of use of emergency medical equipment and treatment, medication, and any other technological or medical interventions available to provide palliative and supportive care to the qualified minor.”
The challenged order basically adjudicated a dispute among the parties arising under
Section 22-8A-9(e) provides, in pertinent part:
“Nothing in [the NDA] shall impair or supersede the jurisdiction of the circuit court in the county where a patient is undergoing treatment to determine whether life-sustaining treatment or artificially provided nutrition and hydration should be withheld or withdrawn in circumstances not governed by [the NDA] or to determine if the requirements of [the NDA] have been met.”
Section 22-8A-9(e) recognizes the jurisdiction of a circuit court in the county where the patient is undergoing treatment to adjudicate a dispute regarding, among other things, whether the requirements of the NDA have been met. Assuming, without deciding, that
In Worley v. Jinks, 361 So. 2d 1082 (Ala. Civ. App.), writ quashed, 361 So. 2d 1089 (Ala. 1978), this court considered a similar situation. The Worleys commenced an adoption proceeding in the DeKalb Probate
The mother maintains that the juvenile courts do not have concurrent jurisdiction over cases arising under the NDA because, she says, the legislature has not granted juvenile courts any statutory authority over PPEL care orders concerning a dependent child. This argument actually does not concern the general subject-matter jurisdiction of the juvenile court; rather, it pertains to the separate jurisdictional question of the specific authority of the juvenile court to make a particular order in a case within its general subject-matter jurisdiction. “‘The power to render the decree or judgment which the court may undertake to make in the particular cause, depends upon the nature and extent of the authority vested in it by law in regard to the subject-matter of the cause.‘” Espinosa v. Espinosa Hernandez, 282 So. 3d 1, 12 n.9 (Ala. Civ. App. 2019) (quoting Cooper v. Reynolds, 77 U.S. (10 Wall.) 308, 317 (1870)). We therefore examine the AJJA to determine if the juvenile court had statutory authority to enter the challenged order.
Section 12-15-103(f), Ala. Code 1975, provides that “[t]he juvenile court shall have and exercise equity power,” which includes the parens patriae power. See Ex parte Department of Mental Health, 511 So. 2d 181, 185 (Ala. 1987). The parens patriae power is the power of the state, acting as the sovereign parent, to assume custody and control of a dependent child in order to take all actions necessary to protect the welfare and best interests of the child, see York v. Willingham, 18 Ala. App. 59, 60, 88 So. 218, 218 (1920), which includes, in appropriate circumstances, the power to issue orders relating to PPEL care orders regarding a “qualified minor” under the AHA.
“The court has an equitable duty to protect the welfare of the children within its jurisdiction. ‘The state has a “parens patriae interest in preserving and promoting the welfare of the child....“’ (In re Sade C. (1996) 13 Cal. 4th 952, 989 [55 Cal. Rptr. 2d 771, 920 P.2d 716], quoting Santosky v. Kramer (1982) 455 U.S. 745, 766 [102 S.Ct. 1388, 1401, 71 L.Ed.2d 599].) The parens patriae power permits a court with jurisdiction over an individual under a disability to order withdrawal of his or her life-sustaining medical treatment. (In re Quinlan (1976) 70 N.J. 10 [355 A.2d 647, 665–666, 79 A.L.R.3d 205].) As the court explained in In re Quinlan, the first significant case considering the rights of the incompetent with respect to withdrawal of life-sustaining medical treatment, the courts have a nondelegable responsibility to make these decisions as a result of their inherent equitable powers. (Ibid.)”
In re Christopher I., 106 Cal. App. 4th 533, 557, 131 Cal. Rptr. 2d 122, 139 (2003),
The legislature has codified the parens patriae power of a juvenile court over a dependent child at
“[i]f a child is found to be dependent, the juvenile court may make any of the following orders of disposition to protect the welfare of the child:
“....
“... any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child.”
The neglected child at issue in K.I., K.I., had been neurologically devastated and had become unresponsive. K.I.‘s doctors believed that K.I. would inevitably succumb to the injuries and therefore should not be subjected to painful resuscitation techniques. The District of Columbia‘s child-welfare agency had been awarded legal custody of K.I., but it excluded itself from making the decision to authorize a do-not-resuscitate order for the child. The mother and the father of K.I. disagreed as to the best course for the child. The controversy eventually went before the Family Division of the Superior Court, which authorized the do-not-resuscitate order. On appeal, the District of Columbia Court of Appeals relied on
The facts of K.I. bear a striking resemblance to those in this case in which the juvenile court received evidence indicating that the child suffers from a terminal illness that has blinded the child and has left the child unresponsive to any stimuli other than pain and discomfort. According to the child‘s physicians, the child will, as his disease progresses, inevitably go into respiratory distress. The techniques that would be used to resuscitate the child, including chest compressions and placing the child on a ventilator, would themselves be painful and would only prolong the agony of the child. The medical experts involved opined that the child should not undergo those resuscitation techniques but should be allowed to die a natural death. DHR has been awarded legal custody of the child, but it asserts that it lacks the authority to make a decision regarding a PPEL care order for the child. Massey and the mother disagree as to the best course for the child. Like the Family Division of the Superior Court in K.I., the juvenile courts of this state are vested with the parens patriae power to make any order of disposition the court determines to be in the welfare and best interests of a dependent child. See
Contrary to the mother‘s contention, the absence of more specific statutory language authorizing juvenile courts to withhold medical treatment from a dependent child does not preclude a juvenile court from exercising its general parens patriae power to adjudicate issues involving a PPEL care order. Section 12-15-115(b)(1)4 and
circumstances require. As other jurisdictions have recognized,
“the empowerment to determine medical care of a child includes the [c]ourt‘s power to enter [o]rders terminating those procedures. The mandate of juvenile courts to act in furtherance of the child‘s welfare provides the authority to make medical care decisions, including the entry of a DNR [Do Not Resuscitate] Order, where the child is in the custody of the state.”
In re Truselo, 846 A.2d 256, 266 (Del. Fam. Ct. 2000) (citing In re C.A., 236 Ill. App. 3d 594, 603 N.E.2d 1171, 177 Ill. Dec. 79 (1992), and Custody of a Minor, supra) (footnotes omitted).
The Illinois Juvenile Court Act contained provisions authorizing the juvenile courts of that state to approve medical procedures necessary to safeguard the life or health of a dependent child in the temporary custody of the state, but the Act did not specify that the juvenile courts could also order the withholding or withdrawal of life-sustaining medical treatment. In construing those provisions, the Fourth Division of the Appellate Court of Illinois held:
“In our view, these provisions support the guardian‘s general standing to petition the court for authority to consent to a medical judgment made by the ward‘s treating physicians, even when that judgment is to discontinue life-sustaining medical
treatment. The court is charged with ruling on all matters presented to it regarding the welfare of the child. Moreover, the Juvenile Court Act provides for court review of matters affecting the ward on a regular basis. For example, the guardian is required, periodically, to file reports in the court to ensure that case plans involving the wards are being implemented. See
Ill. Rev. Stat. 1991, ch. 37, par. 802-28(2) .“In Illinois, no court of review has addressed whether the Juvenile Court Act provides judges with authority to consent to the placement of a DNR [do not resuscitate] order on a minor ward‘s medical chart. Other jurisdictions have accepted the authority of a juvenile court to approve such an order, however. In Custody of a Minor (1982), 385 Mass. 697, 434 N.E.2d 601, the child was suffering from a terminal cardiac condition with no known cure and was on a respirator. The hospital sought entry of a DNR order and the Massachusetts trial court found that it would be in the child‘s best interest not to be resuscitated if he went into cardiac or respiratory arrest. On appeal, the Supreme Judicial Court affirmed, holding that once a child in need of care and protection is committed to the Department of Social Services, the juvenile court has authority to make medical care decisions, including the one in question. See also In re Guardianship of Hamlin (1984), 102 Wash. 2d 810, 689 P.2d 1372 (Court held that court-appointed guardian of ward with mental age of one year had statutory authority to consent to termination of life support systems, even without court intervention, but that any interested party could file petition in court and court would intervene in cases of conflict between hospital, prognosis committee, attending physicians, or guardian); In re L.H.R. (1984), 253 Ga. 439, 321 S.E.2d 716 (Subject to certain safeguards, parents or legal guardian of terminally ill infant or incompetent adult in comatose state could consent to removal of life support without prior judicial
intervention). See also Annot., Judicial Power To Order Discontinuance of Life-Sustaining Treatment (1986), 48 A.L.R. 4th 67.
“Our juvenile court is charged with implementing its legislative mandate to care for those minors found to be in need of the State‘s protection. We believe that the court acted properly in hearing the petition and in concluding that C.A.‘s guardian could consent to the placement of a DNR order on her charts under certain conditions.”
In re C.A., 236 Ill. App. 3d at 605–06, 603 N.E.2d at 1178, 177 Ill. Dec. At 804; see also In re Interest of Tabatha R., 252 Neb. 687, 695, 564 N.W.2d 598, 604, opinion amended on denial of reh‘g, 252 Neb. 864, 566 N.W.2d 782 (1997) (holding that juvenile court had authority to decide whether to remove a dependent child from life-support measures and whether to resuscitate child as part of its statutory oversight power of “medical services” provided to dependent children).
In line with those cases, we hold that the provisions of the AJJA governing medical care for dependent children do not limit the juvenile courts’ parens patriae power to authorize PPEL care orders. In so holding, we join the other courts that have considered essentially the same jurisdictional question under their respective statutes and have unanimously reached the same conclusion. See, e.g., In re Christopher I., supra;
Lovato v. District Court In & For Tenth Judicial Dist., 198 Colo. 419, 424, 601 P.2d 1072, 1075 (1979); Hunt v. Division of Family Servs., 146 A.3d 1051, 1064 (Del. 2015); In re Truselo, supra; In re K.I., supra; D.K. v. Commonwealth of Kentucky ex rel. Cabinet for Health & Family Servs., 221 S.W.3d 382 (Ky. Ct. App. 2007); In re C.A., supra; In re P.V.W., 424 So. 2d 1015 (La. 1982); Custody of a Minor, supra; and In re AMB, 248 Mich. App. 144, 640 N.W.2d 262 (2001).
Therefore, we reject the mother‘s contention that the juvenile court lacked jurisdiction to enter the challenged order.
II. Alleged Violations of the NDA
A. Alleged Violation of PPEL Care Order Format
The mother next argues that the challenged order does not comport with the NDA because, she says, the juvenile court did not fill out an “Order for PPEL Care Form” approved by the Alabama Department of Public Health and signed by the representative of the child and the child‘s attending physician, as required by
The mother misapprehends the substance of the challenged order. The juvenile court did not purport to make a PPEL care order itself. Instead, the juvenile court appointed Massey as the representative of the child to execute the PPEL care order form for placement in the child‘s medical file. The challenged order specifically requires Massey to follow the pertinent regulations and to execute and submit the form promulgated by the Alabama Department of Public Health. We find no merit in the mother‘s argument that the juvenile court improperly circumvented
B. Appointment of Guardian Ad Litem As Representative
Finally, we judicially notice that the challenged order appoints Massey, a guardian ad litem, as the representative of the child for the purpose of executing the PPEL care order. A “representative of a qualified minor” is defined as
“[a]ny of the following:
“a. A parent of a qualified minor whose medical decision-making rights have not been restricted.
“b. A legal guardian of a qualified minor.
“c. A person acting as a parent, as the term is defined in [
Ala. Code 1975, §] 30-3B-102 , of a qualified minor.”
The members of this court disagree as to whether the mother argued in her mandamus petition that the juvenile court violated
“b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”
Ordinarily, when a petitioner has not raised a point in support of the issuance of a writ of mandamus before the lower court, that point is not preserved for the appellate court‘s consideration. See State v. Reynolds, 887 So. 2d 848, 851–52 (Ala. 2004) (“This Court will not ... issue a writ of mandamus commanding a trial judge to rescind an order[] based upon a ground asserted in the petition for the writ of mandamus that was not asserted to the trial judge, regardless of the merits of a petitioner‘s position in the underlying controversy.“). Furthermore, an appellate court cannot consider issues not argued by a petitioner, which are considered to be waived. See Braxton v. Stewart, 539 So. 2d 284, 286 (Ala. Civ. App. 1988) (“An appeals court will consider only those issues properly delineated as such, and no matter will be considered ... unless presented and argued in brief.“). However,
“‘[a]n exception to the rule that an unpreserved issue will not be considered on appeal exists where the interests of minors or incompetents are involved. [...] The duty to protect the rights of minors and incompetents has precedence over procedural rules otherwise limiting the scope of review and matters affecting the rights of minors can be considered by this court ex mero motu.‘”
Berry v. Berry, 2018 Pa. Super. 276, 197 A.3d 788, 797 (2018) (quoting South Carolina Dep‘t of Soc. Servs. v. Roe, 371 S.C. 450, 463, 639 S.E.2d 165, 172 (2006)); see also In re J.E.G., 144 Vt. 309, 313, 476 A.2d 130, 133 (1984) (addressing unpreserved issue because of “protective nature” of juvenile hearings).
In Stevens v. Everett, 784 So. 2d 1054, 1055 (Ala. Civ. App. 2000), overruled on other grounds by Ex parte Fann, 810 So. 2d 631 (Ala. 2001), this court recognized that exception by stating:
“Although [Becky Stevens] did not specifically raise the [Alabama Custody and Domestic or Family Abuse Act] in the trial court or on appeal, and although Judge Robertson is correct in stating that this court generally does not review on appeal arguments not raised either in the trial court or in the appellant‘s brief, a case involving child custody is not the ‘general’ case. Alabama courts have historically held that when a trial ‘court has acquired jurisdiction of a child as to the child‘s custody and control, the child becomes a ward of the court and the parties to the suit are of secondary importance.’ Thorne v. Thorne, 344 So. 2d 165, 168 (Ala. Civ. App. 1977) (citation omitted). In addition, our supreme court has held that ‘[t]he question of the custody of infant children is not an adversary proceeding between parents in the eyes of the law, but is a matter within the peculiar discretion of the [trial court] as to the welfare of wards of the court.’ Stephens v. Stephens, 253 Ala. 315, 319–20, 45 So. 2d 153, 157 (1950).”
Although in Ex parte Fann, 810 So. 2d at 635, our supreme court criticized Stevens, the court did not overrule that part of this court‘s decision recognizing that the interests of minors may in some cases justify addressing an issue not otherwise preserved for appellate review.7 In Pritchett v. Dixon, 222 Ala. 597, 600, 133 So. 283, 285 (1931), Doss v. Terry, 256 Ala. 218, 218, 54 So. 2d 451, 452 (1951), and Citizens Walgreen Drug Agency, Inc. v. Gulf Insurance Co., 282 Ala. 648, 213 So. 2d 814 (1968), the supreme court itself held that it could, ex mero motu, notice and correct an irregularity in the proceedings involving the failure to appoint a guardian ad litem for a minor child.
In this case, the juvenile court committed an indisputable error of law in appointing Massey as the representative of the child because Massey is not within the class of persons eligible to act as a representative for a qualified minor under
We understand that Massey and the juvenile court were attempting to provide relief that they deemed to be in the best interest of the child in dire circumstances, but the AHA controls the manner in which a PPEL care order may be effected. The AHA mandates that only a “representative” of a qualified minor may execute a PPEL care order,
III. Conclusion
Although the mother is not entitled to the relief she seeks based on the alleged lack of jurisdiction of the juvenile court to enter the challenged order and on the juvenile court‘s alleged error in failing to follow the regulations and procedures governing PPEL care orders, we nonetheless grant the petition on the basis that the juvenile court erred in appointing Massey as the representative of the child and authorizing Massey to execute a PPEL care order for the child, and we order the juvenile court to vacate the challenged order for that reason.
2190611 -- PETITION GRANTED; WRIT ISSUED.
2190612 -- PETITION GRANTED; WRIT ISSUED.
Thompson, P.J., and Donaldson, J., concur.
Hanson, J., concurs in part and concurs in the result, with writing.
Edwards, J., concurs in the result, with writing.
HANSON, Judge, concurring in part and concurring in the result.
I concur in the main opinion with one limited exception. I do not agree that Stevens v. Everett, 784 So. 2d 1054 (Ala. Civ. App. 2000), is in any way authoritative as to the question whether an appellate court considering a petition for a writ of mandamus may properly reach a ground that was not first asserted in the tribunal to which the writ is to be directed. Our supreme court, in Ex parte Fann, 810 So. 2d 631 (Ala. 2001), overruled Stevens and quoted with approval Presiding Judge Robertson‘s dissent criticizing the fundamental flaw of the main opinion in that case: undertaking “‘a sua sponte search for error [in violation of] the fundamental precepts of appellate procedure.‘” 810 So. 2d at 635 (quoting Stevens, 784 So. 2d at 1056 (Robertson, P.J., dissenting)). Because the main opinion in Stevens was rejected 19 years ago in Ex parte Fann, I do not believe it should be now invoked in order to reach “plain error” that was not raised in the juvenile court, and I thus do not join Part II(B) of the main opinion (although I have no quarrel with that opinion‘s reading of
EDWARDS, Judge, concurring in the result.
I disagree with much of the analysis in the main opinion. Nevertheless, I concur in the result.
Emery D. Massey, the guardian ad litem for K.H. (“the child“), sought and obtained two orders from the Marshall Juvenile Court (“the juvenile court“) –- the April 10, 2020, order and the May 8, 2020, order -- that authorized the implementation of orders to withhold life-sustaining treatment from the child without obtaining the consent of R.H. (“the mother“). See
In the May 2020 order, the juvenile court expressly authorized the use of an “order for pediatric palliative and end of life care” (“a PPEL care order“), as defined in
“and treating physicians shall fill in the appropriate form provided for [a PPEL care] order. “This Order and forms once applied shall be placed in the child‘s medical file and will go with the child at any hospital, medical facility, nursing home, hospice, or doctor where the child may be located and shall govern an end of life situation.”
The NDA clearly provides that a PPEL care order may be executed by
“a. A parent of a qualified minor whose medical decision-making rights have not been restricted.
“b. A legal guardian of a qualified minor.
“c. A person acting as a parent, as the term is defined in [
Ala. Code 1975, §] 30-3B-102 , of a qualified minor.”
Regarding subject-matter jurisdiction, the NDA specifically states that the circuit court in the county where a patient is receiving treatment has jurisdiction over cases “to determine if the requirements of [the NDA] have been met” and “to determine whether life-sustaining treatment or artificially provided nutrition and hydration should be withheld or withdrawn in circumstances not governed by [the NDA].”
The main opinion concludes that the juvenile court has subject-matter jurisdiction over the type of case at issue and that the mother otherwise has made an inadequate argument to support granting her petition based on the juvenile court‘s lack of jurisdiction. Regarding the former, I do not agree that the jurisdiction of the juvenile court is as broad as the main opinion suggests, and I see no need for the dicta regarding the purportedly expansive nature of the juvenile court‘s equity jurisdiction regarding health-care decisions impacting the death of a child.13 The juvenile court has subject-matter jurisdiction over the underlying dependency proceeding and termination-of-parental-rights proceeding, and Massey‘s motion concerns issues within that jurisdiction, namely, (1) whether certain unquestionably medical interventions (resuscitation measures) should be administered to a dependent child when those interventions might briefly prolong a child‘s life but also will purportedly cause substantial harm to the child and (2) who is authorized, by law, to make the decision regarding whether to administer such interventions to the dependent child.
Regarding the mother‘s argument, the issues before us involve matters of first impression under the NDA, and the pertinent facts are undisputed and are straightforward. The mother has focused primarily on the issue of the juvenile court‘s purported lack of subject-matter jurisdiction, but even within that issue she has emphasized concern about the basis on which a juvenile court could “enter an order and or disposition ‘allowing natural death’ for a child in [the Department of Human Resources‘] custody ... over the objection of a mother whose rights have not been terminated.” (Emphasis added.) See Espinosa v. Espinosa Hernandez, 282 So. 3d 1, 12 n.9 (Ala. Civ. App. 2019) (noting the ambiguity
The Marshall County Department of Human Resources has filed an answer in support of the mother‘s petition for the writ of mandamus and likewise has questioned the juvenile court‘s authority to issue an order granting Massey‘s request over the objection of the mother. DHR argues that it has been awarded only “temporary legal custody” of the child,14 that the mother‘s parental rights have not been terminated, that the mother had the “right to give or withhold consent to medical treatment for her child ... and to authorize pediatric palliative and end of life care ... pursuant to
Unlike the main opinion, I do not believe that this court must adopt plain-error review in order to address the mother‘s argument, nor do I believe that the mother failed to raise the issue whether the juvenile court‘s jurisdiction extended so far as to allow that court to violate the law governing a PPEL care order -- or to judicially legislate into existence a fourth category of representative of a qualified minor -- by appointing Massey to execute such an order when the mother refused to consent to such an order before the juvenile court and DHR took the position that it had no statutory authority to execute the order. In my opinion, the mother adequately raised the issue whether the NDA authorized the juvenile court to appoint Massey to execute a PPEL care order under the circumstances presented to that court, and this court has the discretion to address that issue based on the petition, answers, and supporting materials before us.15 There simply is no basis in the NDA for a guardian ad litem to exercise such authority, much less over the objection of a parent whose parental rights have not been terminated, and, given the condition of the child and the likelihood that the child will die when the guardian ad litem‘s PPEL
Notes
“If any relative, health care provider who is involved directly in the care of the patient, or other individual who is involved directly in providing care to the patient desires to dispute the authority or the decision of a surrogate to determine whether to provide, withhold, or withdraw medical treatment from a patient, he or she may file an action for declaratory and injunctive relief in the circuit court for the county where the patient is under treatment. A health care provider who is confronted by more than one individual who claims authority to act as surrogate for a patient may file an action for declaratory relief in the circuit court for the county where the patient is under treatment.”
Assuming, without deciding, that“(b) A juvenile court also shall have original jurisdiction in proceedings concerning any child in ... the following instances:
“(1) The child requires emergency medical treatment in order to preserve his or her life, prevent permanent physical impairment or deformity, or alleviate prolonged agonizing pain.”
“Upon examination, if it appears that the child is in need of surgery, medical treatment or care, hospital care, or dental care, the juvenile court may cause the child to be treated by a competent physician, surgeon, or dentist or placed in a public hospital or other institution for training or care or in an approved private home, hospital, or institution, which will receive him or her for like purposes. ...”
“A person, other than a parent, who:
“a. Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and
“[W]e know that [the child‘s] respiratory system will eventually fail. An ‘Allow Natural Death’ order will prevent him from having to receive painful chest compressions and be [placed] on mechanical ventilation machine[, from which he had developed severe complications in the past]. ... [W]e will continue the antibiotics that are treating his current infection and start new antibiotics if he needs them in the future. We will also continue nutrition through his IV and the therapies that help him stretch and prevent painful contractures of his joints.”
Also, in appropriate circumstances in a dependency proceeding or termination-of-parental-rights proceeding, a juvenile court might restrict a parent‘s “medical decision-making rights,” as that term is used in