Ex parte R.H., 2190611

CourtAlabama Court of Civil Appeals
Writing for the CourtMOORE, Judge.
Docket Number2190612,2190611
PartiesEx parte R.H. (In re: Marshall County Department of Human Resources v. R.H.)
Decision Date02 June 2020

Ex parte R.H.

(In re: Marshall County Department of Human Resources



OCTOBER TERM, 2019-2020
June 2, 2020

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.


(Marshall Juvenile Court, JU-19-709.01 and JU-19-709.02)

MOORE, Judge.

R.H. ("the mother") has filed a petition for the writ of mandamus requesting that this court direct the Marshall

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Juvenile Court ("the juvenile court") to vacate its order entered in case number JU-19-709.01 and in case number JU-19-709.02 granting Emery D. Massey the authority to execute a pediatric palliative and end-of-life ("PPEL") care order regarding K.H. ("the child").1 We grant the petition.


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

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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

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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 would testify that she had seen the child approximately 10 days earlier and that the child had said "Mama," which, the mother would assert, showed signs of the child's improvement; that the mother did not want a PPEL care order issued; and that the hospital social workers would testify that the visit the mother described had not occurred.

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

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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).

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

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and a termination-of-parental-rights action, over which the juvenile court has statutory jurisdiction. See Ala. Code 1975, § 12-15-114(a) (setting forth the jurisdiction of juvenile courts in dependency actions), and § 12-15-114(b)(2) (setting forth the jurisdiction of juvenile courts in termination-of-parental-rights actions). Although recognizing the general subject-matter jurisdiction of the juvenile court in the underlying proceedings, the mother maintains that the juvenile court did not have the specific authority under the Alabama Juvenile Justice Act ("the AJJA"), Ala. Code 1975, § 12-15-101 et seq., to order the placement of a PPEL care order in the child's medical files. The mother argues further that the Natural Death Act ("the NDA"), Ala. Code 1975, § 22-8A-1 et seq., controls the question of jurisdiction over disputes concerning a child's PPEL care order and that the NDA does not grant such jurisdiction to juvenile courts. We consider the jurisdictional issue as a matter of first impression.

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

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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." Ala. Code 1975, § 22-8A-3(17).2 Section 22-8A-15(a), Ala. Code 1975, the operative section of the AHA, provides, in pertinent part:

"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

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emergency medical equipment and treatment, medication, and any other technological or medical interventions available to provide palliative and supportive care to the qualified minor."

§ 22-8A-3(12).

The challenged order basically adjudicated a dispute among the parties arising under § 22-8A-15(a) by directing Massey to execute and to have placed in the child's medical records a PPEL care order. The mother claims that Ala. Code 1975, § 22-8A-9(e), required the parties to submit that controversy to the Jefferson Circuit Court.

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 § 22-8A-9(e) applies in this case, the Jefferson Circuit Court would have jurisdiction to decide the

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dispute among the parties regarding whether the requirements of the NDA have been met. However, § 22-8A-9(e) does not provide that the jurisdiction of that court shall be "exclusive."3

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

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DeKalb District Court,...

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