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Nix v. Franklin County Department of Human Resources

Supreme Court of Alabama

April 14, 2017

Jerry Nix
v.
Franklin County Department of Human Resources

         Appeal from Franklin Circuit Court (CV-15-900196).

          MAIN, Justice.

         Jerry Nix appeals from a summary judgment entered by the Franklin Circuit Court finding that he is an adult in need of protective services under the Adult Protective Services Act of 1976, §§ 38-9-1 to -11, Ala. Code 1975 ("the Act"). We reverse and remand.

         I. Facts and Procedural History

         On December 7, 2015, the Franklin County Department of Human Resources ("DHR") filed a petition in the Franklin Circuit Court pursuant to § 38-9-5, Ala. Code 1975, and § 38-9-6, Ala. Code 1975, seeking emergency protective placement for Nix. DHR alleged that Nix, then 78 years old, was an "adult in need of protective services" as that term is defined by the Act. The petition claimed that Nix had not been taking his medications for diabetes and hypertension and that he had been the victim of a postal scam costing him thousands of dollars. DHR further alleged that Nix urgently required nursing-home care to protect his health and safety and that, otherwise, Nix was in immediate danger. DHR requested emergency-protective placement for Nix and that the court set a hearing pursuant to § 38-9-6 to determine Nix's need for protective services.

         On the same day the petition for emergency placement was filed, the trial court entered an order declaring that Nix was indigent, that he was in need of protective services, and that he needed a conservator and a guardian to administer his estate and to see to his medical needs. The trial court ordered DHR to provide protective services for Nix, appointed a guardian ad litem to represent Nix in the proceedings, and appointed Nix's son, Darren Nix, as conservator of Nix's estate and guardian of his person. The trial court set a hearing on the matter for December 21, 2015. Nix was removed from his home and was placed in the Shoals Hospital Senior Care Center in Muscle Shoals.

         On December 14, 2015, Nix, represented by his guardian ad litem, filed an answer to DHR's petition, denying all material allegations. The trial court set the matter for a jury trial on February 29, 2016.

         On January 12, 2016, DHR filed a motion to replace Darren Nix as Nix's guardian and conservator with the Franklin County sheriff. DHR informed the court that Darren Nix no longer wished to serve as his father's guardian or conservator. DHR also requested that the new guardian/conservator be allowed to sell Nix's house to pay for his care and that Nix be transported from Shoals Hospital Senior Care Center to an assisted-living facility. Nix, through his guardian ad litem, responded that he had no objection to the removal of his son as guardian and conservator and the appointment of the Franklin County sheriff as his guardian and conservator, but he objected to the sale of his house or any of his assets "before there has been an adjudication by a jury that [Nix] is an adult in need of protective services." On January 13, 2016, the trial court removed Darren Nix as guardian and conservator and replaced him with the Franklin County sheriff. The trial court also entered an order authorizing the newly appointed guardian and conservator to sell Nix's house at or above fair-market value.

         For reasons unclear from the record, the case did not proceed to trial as scheduled on February 29. On May 18, 2016, Nix, through his guardian ad litem, filed a motion for an independent mental evaluation. Nix contended that the doctors who had previously evaluated him were employed or retained by DHR and therefore were not independent. He also requested that he be permitted an independent medical exam by a doctor specializing in geriatrics. Nix alleged that he was financially able to pay for the mental evaluation. Nix further requested that the case be set for a final hearing. On May 23, 2016, the trial court entered an order denying Nix's request for an independent mental evaluation.

         On June 17, 2016, DHR filed a "Petition for the Sale of Real Estate, " seeking to be allowed to sell Nix's house. DHR asserted that it had found a buyer for the house and attached a sales contract showing a $70, 000 purchase price. DHR contended that the funds from the sale of the house would be used to pay for Nix's stay at the assisted-living facility. The trial court granted DHR's petition on June 20, 2016. On June 22, 2016, Nix, through his guardian ad litem, filed an objection to the sale of his house and a motion to set the case for trial. Nix argued:

"1. The defendant, Jerry Nix, has been held in the custody of the Franklin County Department of Human Resources since December 7, 2015, without a trial in this matter.
"2. The defendant is opposed to his home being sold, and in the event he is determined not to be an adult in need of protective services, he would need to be able to return to his home.
"3. Under Code of Alabama Section 38-9-6 the defendant is entitled to a hearing not more than thirty days from the filing of the petition, and a jury of six persons shall be empaneled for said hearing to serve as a trier of facts.
"4. Under Code of Alabama Section 38-9-6(c), the Court shall give preference in making a determination to the least drastic alternative considered to be proper under the circumstances, including a preference for non-institutional care whenever possible.
"5. Defendant maintains that non-institutional care such [as] return to his home with home health services would be proper in this case. Defendant would further consent to a conservator being appointed to assist the management of his affairs upon his returning to his home."

         In response to Nix's objection, the trial court entered the following order:

"The Court has been made aware that [DHR] is filing a motion for summary judgment. This motion will have to be ruled on before a final sale of the home can be made. If the Motion is denied then the Court will address the sale of the home."

         On June 27, 2016, DHR filed a motion for a summary judgment. DHR requested that the trial court "enter a final order determining that Jerry Nix is an adult in need of protective services and ... allowing for the sale of Jerry Nix's home." DHR contended that the undisputed facts establish that Nix is an adult in need of protective services under § 38-9-6. In support of its motion, DHR attached a number of exhibits, including the report of a United States postal inspector stating that Nix had been the victim of an illegal mail-lottery-prize scam. According to the postal inspector, Nix had fallen victim to a scam in which he mailed sums of money to out-of-state addresses known to be associated with foreign-lottery scams to claim promised -- but nonexistent -- lottery prizes. The postal inspector stated that some of Nix's mail had been seized by the United States Postal Service and that "[e]xamination of the contents of the letters revealed Mr. Nix sent cash, checks, money orders, and credit card information for the purpose of claiming prizes." The postal inspector said it had been explained to Nix that the prize schemes were fraudulent and illegal and that Nix promised not to participate further. Nevertheless, Nix continued to send money to addresses associated with the illegal scheme.

         DHR also attached letters and medical records from three of Nix's physicians who had treated Nix both before and since he was removed from his home.[1] Each doctor wrote that Nix was suffering from dementia. Dr. Leonides Santos, Nix's longtime physician, stated that Nix suffers from "major neurocognitive disorder" and recommended that he be admitted to a long-term-care assisted-living facility to protect him from harm and manipulation. Dr. Timothy L. Carpenter, the attending psychiatrist at Shoals Hospital Senior Care Center, wrote that Nix suffers from "Major Neurocognitive Disorder, Alzheimer's Type." Dr. Carpenter stated that he believes Nix is at high risk of being harmed or of harming others and recommended in his January 6, 2016, letter that Nix be provided a court-appointed guardian. Dr. Loren McCoy wrote that he evaluated Nix on January 26, 2016. Dr. McCoy wrote that he had concluded that Nix was not competent to make decisions for himself regarding his finances or medical care and that Nix needed to be in an assisted-living facility.

         In its summary-judgment motion, DHR also argued that the sale of Nix's house was necessary because Nix's assets were "depleted to the point that he no longer can afford to pay to reside at [the assisted-living] facility without selling his home."[2]

         On June 27, the same day DHR filed the motion for a summary judgment, the trial court entered an order granting the motion and authorizing the sale of Nix's house to proceed. On June 29, 2016, Nix moved to set aside the summary judgment, arguing that the entry of the court's order granting DHR's summary-judgment motion on the date the motion was filed violated the time and notice requirements of Rule 56(c)(2), Ala. R. Civ. P. The trial court set aside its summary judgment and set a hearing on the summary-judgment motion for July 8, 2016.

         On July 7, 2016, Nix, through his guardian ad item, filed a response in opposition to DHR's summary-judgment motion. Nix argued that under the Act he was entitled to a jury trial to determine whether he was an adult in need of protective services. He also argued that, even if he was in need of protective services, there was no evidence indicating that institutionalization was the least drastic alternative available. Nix submitted his own affidavit in opposition to summary judgment. In that affidavit, Nix testified:

"My name is Jerry Nix and I am over the age of 19 years and have full knowledge of the matters and facts alleged herein.
"I am currently residing at the Brentwood Assisted Living facility against my will. Since December 7, 2015, I have been in the custody of the Franklin County Department of Human Resources, who placed me at Shoals Senior Care/Shoals Hospital. I am not an adult in need of protective services. I disagree with any medical opinion that says I cannot adequately live at my home alone and take care of myself. My home is located at 247 Woodmont Drive, Russellville, Alabama. While I have some minor medical issues, I can live at home with the assistance of home health services, and make adequate decisions regarding my care. While I also believe that I have the ability to manage my assets, I am not opposed to a conservator, if the Court would allow me to return to my home. Although I am well aware of the allegations that I have lost a lot of money due to scams, I do not deny that I have lost a significant amount of money but it is my money and it would be no different than if I went to Las Vegas or Tunica and lost all the money gambling. I simply made some poor financial decisions but those decisions were not based upon me being mentally incompetent.
"I am a veteran and fought for my country and feel like my rights are being taken away from me because the Franklin County Department of Human Resources believes I cannot take care of myself the way they see fit. I own my own home, I have an adequate monthly income, and ...

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