In Re DM

738 So. 2d 898, 1999 Ala. Civ. App. LEXIS 423, 1999 WL 424359
CourtCourt of Civil Appeals of Alabama
DecidedJune 25, 1999
Docket2971412
StatusPublished

This text of 738 So. 2d 898 (In Re DM) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DM, 738 So. 2d 898, 1999 Ala. Civ. App. LEXIS 423, 1999 WL 424359 (Ala. Ct. App. 1999).

Opinion

738 So.2d 898 (1999)

In the Matter of D.M.

2971412.

Court of Civil Appeals of Alabama.

June 25, 1999.

Nancy S. Jones, Alabama Department of Mental Health and Mental Retardation.

Ronald J. Williams, Legal Aid Society of Birmingham, Inc., Bessemer, for D.M.

Paula F. Lampkin, Bessemer, guardian ad litem.

BEATTY, Retired Justice.

The Alabama Department of Mental Health and Mental Retardation (the "Department") appeals from an order directing it to use its funds to pay for D.M.'s placement in a specialized residential treatment facility. We reverse and remand.

On or about March 23, 1998, J.M. filed a petition with the Jefferson County Juvenile Court, Bessemer Division, asking the court to commit her minor son, D.M., to the custody and care of the Department. The petition alleged that D.M. was mentally ill and had been diagnosed with reactive attachment disorder; recurrent major depression; fetish disorder; and schizoid *899 avoidant personality traits; that on March 5, 1998, D.M. had threatened to kill himself and his parents; that he had threatened his own life and the lives of his parents many times before; that D.M. had threatened his classmates at school; that D.M. had broken into the homes of neighbors, had stolen female undergarments, and had masturbated while wearing the stolen undergarments; and that the owners of the houses D.M. had broken into considered D.M. to be a burglar and had threatened him with bodily harm.

On March 24, 1998, a preliminary hearing was held on the involuntary-commitment petition. The court found from the evidence presented that probable cause existed for committing D.M.; and it ordered him placed on electronic monitoring, pending a final hearing. A second hearing was held on April 24, 1998, but was continued because D.M.'s psychiatrist could not be present. The court released D.M. from electronic monitoring at the request of his parents and denied a motion filed by D.M.'s guardian ad litem to have D.M. declared dependent.[1] A final hearing on the involuntary-commitment petition was held on May 8, 1998, after which the juvenile court committed D.M. to the custody of the Department.

The guardian ad litem filed another motion with the juvenile court on August 21, 1998, asking the court to declare D.M. a "multiple-needs child," as defined by § 12-15-1(19), Ala.Code 1975, and to place him under the supervision of both the Department of Mental Health and Mental Retardation and the Department of Human Resources ("DHR"). DHR responded by asking the court to deny the guardian ad litem's motion. DHR argued that there was no evidence that D.M. was either dependent or neglected and, therefore, that there was no factual basis to support a finding that he was a multiple-needs child. In the alternative, DHR argued that the court should order the Department to locate a residential program that specialized in the treatment of deviant sexual behaviors and should require the Department to pay the expenses associated with D.M.'s placement in that program.

The Department asserts that it was not served with a summons and the involuntary-commitment petition, as required by § 12-15-90(d)(3), Ala.Code 1975. The Department also asserts that it was not served with the guardian ad litem's motion to declare D.M. a multiple-needs child or with DHR's response to that motion. No summons appears in the record on appeal, and neither the guardian ad litem's motion nor DHR's response indicates that these documents were served upon the Department.

At this point, the record becomes confusing. On August 26, 1998, a hearing was held on the motion to declare D.M. a multiple-needs child. The Department asserts that it was not notified of this hearing and was not represented at the hearing. The record does not disclose exactly what took place on August 26, 1998, and we are unable to determine from the record before us whether evidence was presented at the hearing or whether the hearing was limited to the arguments of counsel. The reporter's transcript does not include any testimony from this hearing. Moreover, the portion of the juvenile court's case action summary that is included in the record and that relates to the hearing is illegible. Following the August 26, 1998, hearing, the juvenile court entered an order that states, in pertinent part, as follows:

"Appearing are Leigh Sansone, attorney for the child; Paula Lampkin, guardian ad litem for [the] minor child; Horace O'Neal, attorney for [the] child's parents; Ed Fawwal, attorney for DHR; Lyn Durham, Asst. District Attorney; Jason Springfield, Family Court Mental Health Liaison.
"This cause coming to be heard on Motion To Declare Minor Child Multi Needs filed by Paula Lampkin, child's guardian ad litem. After considering *900 the same, this Court denies said Motion To Declare Minor Child, [D.M.], a multi needs child. This Court further notes that said child has no delinquent cases before this Court and has not been found dependent. This Court further orders that the Department of Mental Health and Mental Retardation is charged with the responsibility of securing a residential program that specializes in the treatment of deviant sexual behaviors for said minor child, [D.M.]. This Court further orders that the Department of Mental Health and Mental Retardation shall be charged with the responsibility of funding such placement."

(Emphasis added.)

The Department did receive the August 26, 1998, order, and on September 9, 1998, it filed a motion to alter, amend, or vacate the order. The only ground asserted in this motion was the Department's claim that Alabama law did not authorize the court to require the Department to pay for D.M.'s placement in a private residential treatment program. The court subsequently denied this motion.

On appeal, the Department argues that it was not served with a summons, as required by Rule 13(A), Ala. R. Juv. P., and that it is not a party to this case. Therefore, the Department argues that the trial court had no jurisdiction to order it to pay for D.M.'s placement in a private residential treatment facility. Moreover, the Department argues that even if it were made a party to this case by virtue of the court's May 8, 1998, order committing D.M. to the custody of the Department, it was not served with the documents leading up to the August 26, 1998, hearing, or given notice of the hearing itself. See, Rule 5(a), Ala. R. Civ. P. (which requires every written motion, except those which may be heard ex parte, to be served upon each party to an action). Therefore, the Department argues that the juvenile court's judgment should be reversed. However, because the Department did not raise this issue before the trial court, it was not preserved for our review. Matter of Brown, 513 So.2d 628 (Ala.Civ.App. 1987); Rule 27, Ala. R. Juv. P.

In Brown, DHR filed a petition to involuntarily commit Brown, who was mentally retarded. After a preliminary and final hearing, the trial court entered an order committing Brown to the custody of the Department. The Department appealed, asserting that it was not given notice of the petition to commit Brown or the subsequent hearing, as required by § 12-15-90(d)(3), Ala.Code 1975. The Department argued that because it was not notified of the hearing, it was not afforded an adequate chance to respond to the petition. In rejecting this argument, we held the following:

"We have examined the record and fail to find any motion made by [the department of] Mental Health to the trial court to set aside the commitment order on the grounds of lack of notice.

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Bluebook (online)
738 So. 2d 898, 1999 Ala. Civ. App. LEXIS 423, 1999 WL 424359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dm-alacivapp-1999.