Ex parte R.H. PETITION FOR WRIT OF MANDAMUS (In re: Marshall County Department of Human Resources v. R.H.)
2190611 and 2190612
ALABAMA COURT OF CIVIL APPEALS
June 2, 2020
MOORE, Judge.
OCTOBER TERM, 2019-2020; Marshall Juvenile Court, JU-19-709.01 and JU-19-709.02
R.H. (“the mother“) has filed a petition for the writ of mandamus requesting that this court direct the Marshall
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
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
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
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
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
“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 ofemergency 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 Court. The probate court eventually transferred the adoption proceedings to the
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
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
“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), overruled by implication on other grounds by In re Zeth S., 31 Cal. 4th 396, 73 P.3d 541, 2 Cal. Rptr. 3d 683 (2003); see also Custody of a Minor, 385 Mass. 697, 434 N.E.2d 601 (1982) (holding that the issue whether to withhold medical treatment for a child in the care of a
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
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
“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;
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
“[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.”
“b. Has been awarded legal custody by a court or claims a right to legal custody under the law of this state.”
“‘[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));
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).”
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
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
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
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.
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
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
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
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
The Marshall County Department of Human Resources has filed an answer in support of the mother‘s petition for the
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