# Amicus Brief — Kremens v. Bartley

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 119

## Text

IN THE | IEE ol estes nail |
Supreme Court of the United States

OcTOBER TERM, 1976

No. 75-1064

Jack J3. KreMens, et al., Appellants
vV.

KeEvIN Bart ey, et al., Appellees

On Appeal From the Judgment of the United States District Court
for the Eastern District of Pennsylvania

BRIEF OF AMERICAN PSYCHIATRIC ASSOCIA-
TION, AMERICAN SOCIETY FOR ADOLESCENT
PSYCHIATRY, AMERICAN ACADEMY OF CHILD
PSYCHIATRY, AND AMERICAN ASSOCIATION OF
PSYCHIATRIC SERVICES FOR CHILDREN, AS
AMICI CURIAE

ALLEN R. SNYDER
Ilocan & ILARTSON
815 Connecticut Avenue, N.W.
Washington, D.C. 20006

Attorney for Amici Curiae

— =_ ——— a _ — ee e——eEE

PRESs oF BYRON S. AvLAMS PRINTING, INC., WASHINGTON, D.C.

ee eee —_—

——-

ae

TABLE OF CONTENTS

Page
TwrenestT or Amict CUBIAB ... 0... ce ccccccccccceccees 1
ConmGRNT OF THE PAaRTIBS .... 20. cccccccccccccscccces 2
SraTRMAUT OF THE CASS 2... cc cccccccccccccccccseccs 2
SUMMARE OF ARGUMENT 20... cccccccccccccsccscccccs 4
BI hd bd wn Kad ote cde pois ned Feces bis ceweees 6

I. On July 9, 1976, Pennsylvania Enacted a New
Statute Governing the Admission of Mentally
Bt IIE <0 cine ote thabdlunietisebenvanbes 6

Il. The Lower Court Failed To Take into Account
The Essential Responsibilities and Rights of
Parents for the Upbringing of Their Children,
And the Possible Harms Involved in Requiring
Due Process Adversary Hearings in All Cases.. 8

A. Parents Have a Basic Constitutional Right
To Control the Upbringing of Their Children 10

B. A Blanket Rule Requiring Immediate Due
Process Hearings in All Cases Would Result
Frequently in Psychological Harm to the
RE. nsaresseteeacretanacsuseeureense 15

III. Balancing The Children’s Rights and the Other
Considerations Referred To Above, This Court
Should Except From Due Process Hearing Re-
quirements Those Cases in Which (1) A Parent
in an Intact Family Wishes To Admit a (2) Pre-
Adolescent Child To (3) an Accredited Institu-
tion (4) for a Short-Term Period ............. 25

Se ik on cba bdewcendchéntbd ekechidcinonesetes 38

TABLE OF CITATIONS
CasEs:

Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941) ...... 12.

ii Table of Contents continued
Page
Briggs v. Arafeh, 411 U.S. 911 (1973), aff’g summarily
Logan v. Arafeh, 346 F. Supp. 1265 (D. Conn.

BD 6eeuiensésnsssneneeenduaaneee 30, 31, 32
Cafeteria d Rest. Workers Union v. McElroy, 367 U.S.

Ge GREED s kbnccesnceunksntannededhesccskene 9
Coll v. Hyland, 411 F. Supp. 905 (D.N.J. 1976) ....... 32

Fhagen v. Miller, 29 N.Y.2d 348, 278 N.E.2d 615, 328
N.Y.S.2d 393, cert. denied, 409 U.S. 845 (1972) ... 32

Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), cert.
denied, 44 U.S.L.W. 3501 (U.S., Mar. 8,1976) .... 16

Fusari v. Steinberg, 419 U.S. 379 (1975) ............. 8
Ginsberg v. New York, 390 U.S. 629 (1968) ........... 11
Goss v. Lopez, 419 U.S. 565 (1975) ...........eeeeees 5,9
Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 12
Hicks v. Miranda, 422 U.S. 332 (1975) ............... 32
FS C8 Hs ee Cs BSED ba bnseececdccescosene 15
In re Green, 448 Pa. 338, 292 A.2d 387 (1972) ........ 13

In re Hudson, 13 Wash. 2d 673, 126 P.2d 765 (1942) .. 13
In re Seiferth, 309 N.Y.2d 80, 127 N.E.2d 820, 137

ep e204 5:d0 dnc a cacehnnaceeaneeteus 13
Jackson v. Metropolitan Edison Co., 419 U.S. 345
SUED 0.040 bishanddouepdauebedesebecdstesscusna 14
Meyer v. Nebraska, 262 U.S. 390 (1923) ......... 10, 12, 13
Morrissey v. Brewer, 408 U.S. 471 (1972) ........... 5,9
Muhlenberg Hosp. v. Patterson, 128 N.J. Super. 498,
ee Bae Oe CUED occ cccaveduccugeunecondecte 12
People v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952).. 12
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..... 5, 10,
11, 12,13
Planned Parenthood v. Danforth, 44 U.S.L.W. 5197
CE, Dele b, TIED ccc ccecveccccavsesvcccvess 5, 13
Prince v. Massachusetts, 321 U.S. 158 (1964) ..... 5, 11, 12
Roe v. Wade, 410 U.S. 113 (1973) .......... eee eeeeee 12
Runyon v. McCrary, 44 U.S.L.W. 5034 (U.S., June 25,
BUEN vce ccecewccccavdencccecosecscecesoucness 12

Table of Contents continued iii

Page

Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn.
TEE cicdkidécscendmetds nmtbdonte<dawbase< 32

Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wisc. 2d
ee Eo ee ceo cd cs cou aseces 64 12
Stanley v. Illinois, 405 U.S. 645 (1972) .............. 11
Wisconsin v. Yoder, 406 U.S. 205 (1972) .... 4, 5, 11, 12, 13
. Wolff v. McDonnell, 418 U.S. 539 (1974) .......... 5, 9, 15

MISCELLANEOUS

T. AcHuensacn, DeEvELOPMENTAL PsYCHOPATHOLOGY

DE << tabadccdncegoauanee ch adkes bwede dase we 27

Annotation, Power of Court Or Other Public Agency
To Order Medical Treatment over Parental Reli-
gious Objections for Child Whose Life Is Not Im-
mediately Endangered, 52 A.L.R.3d 1118 (1973).. 12

Annotation, Power of Public Authorities To Order
Medical Care for a Child Over Objection of Parent
or Custodian, 30 A.L.R.2d 1138 (1953) ........... 12

Beran & Dinitz, An Empirical Study of the Psychiatric
Probation-Commitment Procedure, 43 Am. J.
OrtHopsycHuaTry 660 (1973) ..........0 cee eeeee 22

Ellis, Volunteering Children: Parental Commitment of
Minors to Mental Institution, 62 Cau. L. Rev. 840
ERE Cnc eee P06 6465 EES chs pUSSc dnpeds onde 14, 17

Se ED Seen 6566 56d se datcudctecseesesone 23
, £ f f Peer errrrerr rrr 27

R. Guasscorz, M. Fisoman & M. Sonis, CHILDREN AND
Menta CENTERS, ProcramMs, ProsLeMs, PRosPEcTs

(1972) Sul Sau cewkh 6 bneueleebeet ose bi putas acces 19
E. Hartmann, ET aL., ADOLESCENTS rn A Mentat Hos-
BemAs, (IGTB) 2. ccccccccccseccccccccccsvccccccens 16

iv Table of Contents continued
Page
N. Hosss, THe Furures or Curpren, Carecories,
LaBELS, AND THEIR ConsEQuENCES (1975) ........ 37

Hoffman & Dunn, Beyond Rouse and Wyatt, An Ad-
ministrative-Law Model for Expanding and Imple-
menting the Mental Patient’s Right to Treatment,

Gi Va. Ee, Bape. SRG CRRGED 0 civccedakeeosansenas 35

D. Hotmes, THe ADOLESCENT IN PsycHorHeraPy (1964) 19

Jornt Comm. on MentaL HeattH or CHILpren, Crisis
mv Comp Menta, HeattH: CHALLENGE FOR THE
BOUT CO CERES) 6 cavseccchccnceévenseuansean 18, 19, 24

Jornt Inrormation Service, Eveven Inpices (1971) .. 23

Kahn, ‘‘Mama’s Boy’’ Syndrome, 128 Am. J. Psycut-
SNE TE CHPERD 6ccvckcdetecesvacsiesessenees 18

Kleinfeld, Balance of Power Among Infants, Their
Parents and the State, 4 Fam. L. Q. 409 (1970) ... 14

Lessem, On the Voluntary Admission of Minors, 8 U.
Micx. J. Law Rerorm 189 (1974) ............... 16

Lewis & Solnit, Residential Treatment, in A. FREED-
MAN, ET AL., COMPREHENSIVE TEXTBOOK OF PsycuI-
RG OTT eee 19

MacMillen, et al., The Mentally Retarded Label: A
Theoretical Analysis and Review of Research, 79
Am. J. Mentat Dericrency 241 (1974) .......... 23

Mahan, et al., A Mechanism for Enforcing the Right to
Treatment: The Human Rights Committee, Law
anp Psycno.ocy Rev., Spring 1975 .............- 35

Mandelbaum, Parent-Child Separation: Its Signifi-
cance to Parents, in G. Weser & B. HasBeRr.ern,
ResmENTIAL TREATMENT OF EMOTIONALLY Drts-
TURBED CHILDREN (1972) .........-ccccececscees 16

Table of Contents continued v

Page

Mental Health Procedures Act, Pa. Act No. 143, July 9,
Dh WUdc du beedde cd ccvstccedccccccoccccees 7,8

Miller, Children’s Rights and the Juvenile Court, in
American Psycuitric Ass’n, Screntiric Proceep-
mses is Summary Form, 129th Annuat Meetine

delete a sUhsheb eh dpbsedboccoceceecoeece 21
NationaL Ass’ ror Retrarpep Crrizens, Poricy Srate-
MENTs ON Resipentiat Services (1968) .......... 24

Neubauer, Normal Development in Childhood in B.
Woiman, Manvat or Cuup PsycmopaTHoLocy

tT PtSi chen dee ehedeoeeeees ese ceeeeues 27
Note, Child Neglect: Due Process for the Parent, 70
Ee 13

Note, Recognition and Protection of the Family’s In
terests in Child Abuse Proceedings, 13 J. Fam.
i ct eenecdbeseepepecseeecccescce 20

Note, State Intrusion into Family Affairs: Justifica-
tions and Limitations, 26 Stan. L. Rev. 1383
di AeGeeeebeesbedessetncceccccccecccces 13, 27

Pa. Derr. or Pus. Wexrarze, Orrick or Menta Re-
TARDATION, GUIDELINES FOR THE OPERATION OF THE

Famity Resource Services Program (1975) ...... 29
Pennsylvania Mental Health and Mental Retardation
Act of 1966, §§ 402, 403 .... 2... cc cece eee eee eees 2,3

Philips, et al., Intake for Inpatient Care, in S. Szunex,
L. Beaur & M. Boatman, Iypatrent Cake FOR THE
Psycworic Comp (1971) ....... cece cece eeeeeees 17

J. Piscet, Monat Jupement or THE Curp (1932) ..... 27

J. Potrer, Taz Rowe or Law anp THE Rove or Psycui-
ATBY (19GB) ...ccccccccccccccccccccccccccceces 22

vi Table of Contents continued Table of Contents continued va

Page Page
PresmentT’s CoMMITTEE oN Menta RevaRpaTion, Tizard, et al., Environmental Effects on Language De-
MentaL Retarpation: Trenps rx Strate Services velopment: A Study of Young Children in Long-
CURD snccectsencsntneciooseieebina 18 Stay Residential Nurseries, in S. Cuess & A.
Rabiner & Lurie, The Case for Psychiatric Hospitaliza- py da = ae” = mee dinner mia 18
tion, 131 Am. J. Psycuiatry 761 (1974) .......... 19 wey peers oc
: : . . : W. Wowrenssercer, NORMALIZATION : PRINCIPLE OF
Reich & Siegel, Psychiatry Under Siege: The Chroni- ine ‘ae
cally Mentally Ill Shuffle to Oblivion, 3 Psycu. Ax- Remmmanans ws as Gases (02) ---.
SERS Gee k4e6ciwiscdecsdabedbadbeteebieas 36

Rinsley & Inge, Psychiatric Hospital Treatment of
Adolescents, 25 Buu. or THE Mennuxcer Cumic

See? Ge - bncdvecesdddnecccmiansuenesane. cos 19
Roth, Some Comments on Labeling, 3 Buty. Am. Acap.
Psycuuatry & Law 123 (1975) .............2008- 23
T. Scurr, Bema Mentatty Itt: A Soctorocican
SD GED Kove cncdthcdavcetncddatasetavees 22
Schwartz, Children’s Concepts of Research Hospitali-
zation, 287 New Enc. J. Mep. 589 (1972) ........ 27
Slovenko & Luby, On the Emancipation of Mental Pa-
tients, 3 J. Psycuiatry anp Law 191 (1975) ...... 37

Snyder, The Impact of the Juvenile Court Hearing on
the Child, 17 Crime anv Detiyevency 180

CED - 6s ubesdecendeensenseensadesavunseaes 20, 21
Stiller & Elder, PINS—A Concept in Need of Supervi-
sion, 12 AM. Cru. L. Rev. 33 (1974) ............ 20

Tamilia, Neglect Proceedings and the Conflict Between
Law and Social Work, 9 Duquesne L. Rev. 579
CE . occas dhandakssdskegaadameueneeeenaddan 22

Task Force on Mental Health of Children and Youth,
The Rights of a Child to Refuse Treatment, 1
ManpaTe PennsyLvania’s Menta, Heattu News-
RUE, GER, BSG 2 vce vedecececcecesessasasssces 35

IN THE
Supreme Court of the United States

OctToBER TERM, 1976

No. 75-1064

Jack B. KREMENS, et al., Appellants
v.
Kevin Bart ey, et al., Appellees

On Appeal From the Judgment of the United States District Court
for the Eastern District of Pennsylvania

BRIEF OF AMERICAN PSYCHIATRIC ASSOCIA-
TION, AMERICAN SOCIETY FOR ADOLESCENT
PSYCHIATRY, AMERICAN ACADEMY OF CHILD
PSYCHIATRY, AND AMERICAN ASSOCIATION OF
PSYCHIATRIC SERVICES FOR CHILDREN, AS
AMICI CURIAE

INTEREST OF AMICI CURIAE

The American Psychiatric Association (A.P.A.),
founded in 1844, is the nation’s largest organization
of qualified doctors of medicine who specialize in
psychiatry. Over 21,000 of the nation’s approximately
25,000 psychiatrists are members of the Association.
The A.P.A. has participated as an amicus curiae nu-
merous times in cases throughout the country involving
mental health issues. j

2

The American Society for Adolescent Psychiatry is
a nationwide organization of approximately 1,200 doc-
tors of medicine who specialize in the practice of ado-
lescent psychiatry. The American Academy of Child
Psychiatry is a nationwide organization of approxi-
mately 1,600 doctors of medicine who specialize in the
practice of child psychiatry. The American Association
of Psychiatric Services for Children is a national
multi-disciplinary organization of child mental health
agencies and professionals, whose membership includes
175 separate agencies with total staffs of approximately
10,000 people.

Amici believe this case to be of great significance to
the quality of care available tc mentally ill and men-
tally retarded children. The iandmark ruling below
that parents may not obtain even short-term residential
psychiatric care for such cuildren without judicial in-
tervention is of immense concern to members of amici
and to their patients.

CONSENT OF THE PARTIES

Amici are filing this Brief with the consent of both
parties, whose letters of consent have been filed with
the Clerk.

STATEMENT OF THE CASE

This case is here on appeal from the decision of a
three-judge United States District Court for the East-
ern District of Pennsylvania granting broad declara-
tory and injunctive relief against the continued en-
forcement of Sections 402 and 403 of Pennsylvania’s
Mental Health and Mental Retardation Act of 1966.

The named plaintiffs in this class action are juveniles
who were admitted to a Pennsylvania state hospital

by their parents pursuant to the above provisions of
Pennsylvania law. App. 788a-89a. The named plain-
tiffs ranged in age from 14 to 17 at the time of their
hospitalization and purport to represent all persons
18 years of age or younger who have been, are, or may
be admitted to mental health facilities i: Pennsylvania
under Sections 402 and 403. App. 783a, 789a. Plaintiffs
sought an order declaring these provisions of state law
unconstitutional as violating plaintiffs’ rights to pro-
cedural due process under the Fourteenth Amendment
to the United States Constitution, and they sought in-
junctive relief against continued enforcement of these
provisions by defendant state officials.

The statute at issue here and its implementing regu-
lations allowed’ parents to place their mentally ill or
mentally retarded child in a mental health facility if
the parents’ conclusion that the child’s best interests
require residential care was confirmed by the written
opinion of a referring psychiatrist (or a medical or
psychological opinion in the case of a retarded child)
and by an independent examination of the child to be
conducted by the director of the proposed institution,
or his delegate. Children 13 years of age or older re-
ceived notice that they had a right to obtain appointed
counsel and to object to remaining in the institution.
Any objecting child would be released within two busi-
ness days unless an involuntary commitment proceed-
ing was initiated. App. 815a-l6a.

The district court, one judge dissenting, held that
Sections 402 and 403 violated plaintiffs’ rights because
these provisions allowed parents to admit their chil-
dren to mental health institutions without granting
the children certain enumerated elements of procedural —

2A new state statute recently repealed many provisiong of the
law reviewed by the court below. See Section I, infra.

4

due process. The court ordered that henceforth all
children admitted to Pennsylvania mental health in-
stitutions must have counsel appointed for them and
receive written notice that a ‘‘probable cause hearing”’
will be held within 72 hours of hospitalization. In addi-
tion, a full ‘‘post-commitment hearing’’ must be held
within two weeks of hospitalization. At both such hear-
ings the court ordered that the child and counsel shall
have the right to be present, cross-examine witnesses
and present testimony in order to challenge before an
impartial tribunal the propriety of the parents’ and
admitting psychiatrists’ judgment that the child needs
residential care. The court also ordered that within
120 days of the effective date of its Order each of the
thousands of children hospitalized in state mental
health facilities must be either discharged or recom-
mitted under the court-imposed procedures. App. 843a-
o2a.

This Court on December 16, 1975, granted a stay of
the district court’s Order, and on March 22, 1976,
noted probable jurisdiction over this appeal.

SUMMARY OF ARGUMENT

This case presents novel and difficult questions con-
cerning the proper procedures for parents and guard-
ians to follow when residential psychiatric care is med-
ically reeemmended for their children. The issues are
complex, because resolution of these procedural ques-
tions will have a profound impact on other competing
rights and interests of both the children and their
parents.

This Court has emphasized repeatedly that parents
have a basic constitutional right and responsibility to
control the upbringing of their children. See, e.g., Wis-

consin Vv. Yoder, 406 U.S. 205, 232 (1972); Pierce v.
Society of Sisters, 268 U.S. 510, 534-35 (1925). This
right is not without limitations, see Planned Parent-
hood v. Danforth, 44 U.S.L.W. 5197, 5203-04 (U.S.,
July 1, 1976); Prince v. Massachusetts, 321 U.S. 158,
166 (1944), but, absent extraordinary circumstances, it
should be controlling in view of the fundamental legal
and societal interest in preserving the integrity and
autonomy of the family unit. The lower court not only
failed to give any consideration to this principle of
parental rights and duties, but it also ignored the fact
that in certain categories of mental health admissions
the legal imposition of adversary hearing procedures
will prove therapeutically counter-productive for the
child, because of the very delicate emotional problems
present in such parent-child conflicts.

The decision below applies the deceptively simple
syllogistic reasoning that children’s interest in avoid-
ing admission to residential psychiatric care is a pro-
tected interest within the meaning of the Fourteenth
Amendment’s Due Process Clause, and therefore that
all the traditional elements of procedural due process
must apply to all these cases. Such an approach should
have been the beginning, not the end, of the analysis,
however.

Once it is determined that due process applies, the
courts must still undertake the separate and highly
subtle determination of what process is due. Goss v.
Lopez, 419 U.S. 565, 577 (1975) ; Morrissey v. Brewer,
408 U.S. 471, 481 (1972). Due process is a flexible con-
cept, and its elements must be decided in each situa-
tion with full regard for the competing interests and
practical consequences of applying them. Wolff v. M c-
Donnell, 418 U.S. 539, 563, 567 (1974).

6

The district court did not undertake such an analysis,
but instead tried to fit these diverse cases into a rigid
due process model to which they do not conform. The
court ignored the fact that the class of plaintiffs varies
dramatically with regard to the factors most relevant to
the effect of the proposed procedures on the rights of
children and their parents. The court ignored the very
real harms that formal adversary hearing procedures
can create in certain categories of cases.

Amici recognize that there are serious flaws in our
nation’s system of mental health care for children.
These problems may be exacerbated, rather than alle-
viated, however, by the decision below. Amici believe
that there are well-defined categories of cases in which
carefully crafted hearing procedures may be appro-
priate and helpful. In other situations, which we de-
scribe in Section III, below, the potential harm of such
procedures far outweighs any possible value, and thus
both law and logic demand that they be excepted from
eny constitutionally imposed rule.

Amici contend that balancing the competing inter-
ests—in terms both of constitutional rights and of
mental health concerns—should lead the courts to ex-
cept from formal hearing requirements those cases in
which 1) a parent in an intact family wishes to admit
a 2) pre-adolescent child 3) to an accredited institu-
tion 4) for a short-term period (e.g., less than 45 days).
We will set forth below why we believe this to be the
most appropriate resolution of these important and
difficult issues.

ARGUMENT

L ON JULY 9, 1976, PENNSYLVANIA ENACTED A NEW STATUTE GOVERNING
THE ADMISSION OF MENTALLY ILi CHILDREN.

At the outset, Amici must bring to the Court’s atten-
tion the very recent passage of a new Pennsylvania law

7

governing the procedures for admission of children
to state mental health institutions. Signed into law by
the Governor on July 9, 1976, the Mental Health Pro-
cedures Act, Pa. Act No. 143 (‘‘Act’’), completely
repeals, ‘‘except in so far as they relate to mental
retardation,’’ the provisions of state law declared un-
constitutional by the court below. Jd., § 502. Thus, while
the state procedures reviewed by the lower court con-
tinue to apply to the admission of mentally returded
children to state institutions, the prior procedures for
mentally «/ children have been repealed and replaced
by the provisions of the new Act.

Under this new state law, children who are 14 years
of age or older have essentially the same rights con-
cerning voluntary or involuntary admission to treat-
ment as do adults. Jd., §201.* Children less than 14
years of age may be admitted for treatment by a par-
ent, although ‘‘any responsible party’’ may petition
the court to withdraw the child from such treatment.
Id., §§ 201, 206(b). The new state statute makes many
other changes in the state law under consideration here,
including a requirement that each person admitted to
state mental institutions has a statutory right to an
individualized treatment plan that will afford the pa-
tient ‘‘adequate treatment for his condition,’’ id.,
§§ 104, 107, and that every patient ‘‘shall be examined
by a treatment team and his treatment plan reviewed
not less than once every 30 days.’’ Id., § 108. Such re-
examination and review must ensure that each patient
‘*shall not remain in treatment or under any particular

* The only exception is that if a child over 14 admits himself or
herself voluntarily, the child’s parents may petition the court to

have the treatment terminated and the child returned home. Act,
§ 204.

8

mode of treatment for longer than such treatment is
necessary and appropriate to his needs.’’ Id., § 108(b).
Amici recognize that this Court may conclude that it
would be appropriate to vacate the decision below and
remand this case for an initial interpretation of the
extent to which this new state law departs from the
prior statutory procedures reviewed by the court be-
low. See, e.g., Fusari v. Steinberg, 419 U.S. 379 (1975).

Nevertheless, since counsel for Appellants and Ap-
pellecs have informed Amici that they do not intend
to suggest to the Court that it should remand this case
for reconsideration in light of the new statute, and
since the Court might conclude that certain aspects of
the decision below raise recurring questions not rend-
ered moot by passage of the new legislation, Amici
will proceed in this Brief to set forth the considerations
which we believe should govern if this Court reviews
the merits of the decision below.

I. THE LOWER COURT FAILED TO TAKE INTO ACCOUNT THE ESSENTIAL
RESPONSIBILITIES AND RIGHTS OF PARENTS FOR THE UPBRINGING OF
THEIR CHILDREN, AND THE POSSIBLE HARMS INVOLVED IN REQUIRING
DUE PROCESS ADVERSARY HEARINGS IN ALL CASES.

As professional organizations whose members are de-
voted to assuring the highest quality of mental health
care, Amici share the concern of plaintiffs and the
court below that children all too often are admitted to
mental health institutions that are not appropriate for
their needs, or are allowed to remain in institutions
far longer than medically desirable. In seeking to cure
this problem, however, the district court attempted to
fit this case into a traditional due process mold to which
it does not easily conform. The lower court has pro-
mulgated a rigid constitutional rule that not only ig-
nores the very important responsibilities and rights

of parents to control the upbringing of their children,
but also disregards the clinical realities which suggest
that in some cases due process hearings in fact may
prove harmful to the child’s best interests.

The district court cited cases such as Wolff v. Mc-
Donnell, 418 U.S. 539 (1974), and Goss v. Lopez, 419
U.S. 565 (1975), for the proposition that plaintiffs in
this case have a liberty interest within the contempla-
tion of the Fourteenth Amendment Due Process Clause.
However, that should have been the beginning, not the
end, of the analysis. ‘‘Once it is determined that due
process applies, the question remains what process is
due.’’ Goss v. Lopez, 419 U.S. 565, 577 (1975) ; Morris-
sey V. Brewer, 408 U.S. 471, 481 (1972).

This Court has repeatedly emphasized that due proc-
ess is a flexible concept which must vary according to
the particular circumstances and competing interests
involved in a specific situation. Morrissey v. Brewer,
supra, 408 U.S. at 481. ‘‘[T]he interpretation and ap-
plication of the Due Process Clause are intensely prac-
tical matters,’’ Goss v. Lopez, supra, 419 U.S. at 578,
and ‘‘[t]he very nature of due process negates any
concept of inflexible procedures universally applicable
to every imaginable situation.’”’ Wolff v. McDonnell,
418 U.S. 539, 560 (1974); Cafeteria & Rest. Workers
Union v. McElroy, 367 U.S. 886, 895 (1961). Due proc-
ess ‘‘is not a technical conception with a fixed content
unrelated to time, place and circumstances.’’ Id.
‘*TN Jot all situations calling for procedural safeguards
call for the same kind of procedure.’’ Morrissey v.
Brewer, supra, 418 U.S. at 481.

In the instant case, Amici believe that the lower court
failed to take into account two fundamental factors
that must be considered in any analysis of what process

10

is due when parents seek to admit their child to a
mental health institution: (1) the parents’ independ-
ent constitutional right and responsibility to control
the upbringing of their child; and (2) the severe harms
that can be caused in certain situations by application
of a traditional due process hearing procedure—which
was designed for conflicts between the state and an
individual—to the very different, and emotion-laden
situations that arise when the essential conflict appears
to be between parent and child. Amici contend that a
review of those factors should lead this Court to con-
clude that due process hearing procedures are appro-
priate in certain categories of children’s mental health
admissions, but that the court below has failed to craft
its remedy with due consideration to the important and
sometimes competing interests at stake in different
categories of cases covered by this litigation.

A. Parents Have a Basic Constitutional Right To Control the
Upbringing of Their Children

This Court has repeatedly emphasized the long-
recognized right of parents to control the upbringing
of their children.

More than fifty years ago, in Meyer v. Nebraska,
262 U.S. 390, 399 (1923), the Court included within
those liberties protected by the Fourteenth Amend-
ment the basic right to ‘‘bring up children.’’ The Court
later cited the Meyer decision in Pierce v. Society of
Sisters, 268 U.S. 510 (1925), declaring unconstitutional
a state law that required parents of children between
eight and sixteen years of age to send their children to
public, rather than private, school. The Court held that
it was ‘‘entirely plain that the [statute] unreasonably
interferes with the liberty of parents and guardians

ll

to direct the upbringing and education of children
under their control.’’ Jd. at 534-35. Parents’ authority
to control the upbringing of their children is ‘‘basic
in the structure of our society.’’ Ginsberg v. New York,
390 U.S. 629, 639 (1968).

In Wisconsin v. Yoder, 406 U.S. 205, 232 (1972), the
Court emphasized the ‘‘primary role of the parents in
the upbringing of their children’’:

The history and culture of Western civilization
reflect a strong tradition of ntal concern for
the nurture an upbringing ing of their children. This
pri role of the parents in the upbringi he
their children is now established beyond debate
as an enduring American tradition.

See also Prince v. Massachusetts, 321 U.S. 158, 166
(1944) (recognizing existence of ‘‘the private realm
of family life which the state cannot enter’’) ; Stanley
v. Illinois, 405 U.S. 645, 651 (1972) :

The Court has uently emphasized the impor-
tance of the family. rights to conceive and to
raise one’s children have been deemed ‘‘essential,”’
Meyer v. Nebraska, 262 U.S. 390, 399 (1923),
‘basic civil ri of man,’’ Skinner v. Oklahoma,
316 U.S. 535, (1942), and ** [rights far more
precious .. . than property rights,’’ May v. Ander-
son, 345 U.S. 528, 533 (1953). ‘‘It is cardinal with
us that the custody, care and nurture of the child
reside first in the parents, whose primary function
and freedom include preparation for obligations
the state can neither supply nor hinder.’’ Prince
v. Massachusetts, 321 U.S. 158, 166 (1944). The
mnaeeny, of the family unit has found protection in
the Process Clause of the Fourteenth Amend-
ment, Meyer v. Nebraska, supra, at 399, the Equal
Protection Clause of the Fourteenth Amendment,
Skinner v. Oklahoma, supra, at 541, and the Ninth

12

Amendment, Griswold v. Connecticut, 381 U.S.
479, 496 (1965) (Goldberg, J., concurring).

Finally, in Runyon v. McCrary, 44 U.S.L.W. 5034,
5039-40 (U.S., June 25, 1976), this Court reviewed the
authorities discussed above and concluded that the pa-
rental rights recognized by cases such as Meyer, Pterce,
and Yoder, and the familial privacy rights recognized
in cases such as Roe v. Wade, 410 U.S. 113 (1973), and
Griswold v. Connecticut, 381 U.S. 479 (1965), ‘‘may be
no more than verbal variations of a single constitu-
tional right.’’ Runyon v. McCrary, supra, 44 U.S.L.W.
at 5040 n. 15.

These parental rights are not, of course, without
limitations. See Prince v. Massachusetts, 321 U.S. 158,
166 (1944). While parents generally have the right to
give or withhold consent for most surgical procedures
for their children, see Bonner v. Moran, 126 F.2d 121
(D.C. Cir. 1941) ; Scaria v. St. Paul Fire & Marine Ins.
Co., 68 Wisc. 2d 1, 227 N.W.2d 647 (1975), courts have
overruled parents’ religious objections and ordered
blood transfusions that were necessary to save the
child’s life. See, e.g., People v. Labrenz, 411 Ill. 618,
104 N.E.2d 769 (1952); Muhlenberg Hosp. v. Patter-
son, 128 N.J. Super. 498, 320 A.2d 518 (1974).*° How-
ever, such interference with parental discretion has
been rare and is generally limited to instances where
a child is in danger of suffering grievous harm. See
Muhlenberg Hosp. v. Patterson, supra, 320 A.2d at

* See generally Annotation, Power of Court Or Other Public
Agency To Order Medical Treatment Over Parental Religious
Objections for Child Whose Life Is Not Immediately Endangered,
52 A.L.R.3d 1118 (1973); Annotation, Power of Public Authori-
ties To Order Medical Care for a Child Over Objection of Parent
or Custodian, 30 A.L.R.2d 1138 (1953).

13

521; Note, State Intrusion into Family Affairs: Justt-
fications and Limitations, 26 Stan. L. Rev. 1383, 1398-
99 (1974) (standard is one of ‘‘severity and irreversi-
bility’’ of harm to child); Note, Child Neglect: Due
Process for the Parent, 70 Cot. L. Rev. 465, 472 (1970)
(‘‘the state should not be permitted to take this drastic
step [intervening in parental decisions] without dem-
onstrating that the child has been inflicted or threat-
ened with serious harm’’). Compare In re Green, 448
Pa. 338, 292 A.2d 387, 392 (1972) (state interest in
child’s health outweighs parents’ religious belief only
when child’s life immediately imperiled), with In re
Seiferth, 309 N.Y.2d 80, 127 N.E.2d 820, 137 N.Y.S.2d
35 (1955) (upholding parental refusal to allow opera-
tion to correct cleft palate) ; In re Hudson, 13 Wash.
2d 673, 126 P.2d 765 (1942) (upholding parent’s re-
fusal to permit removal of daughter’s grossly deformed
arm, although condition would result in permanent
psychological and circulatory damage).

Similarly, in Planned Parenthood v. Danforth, 44
U.S.L.W. 5197 (U.S., July 1, 1976), the Court deter-
mined that a minor female’s privacy right to determine
whether or not to terminate her pregnancy outweighs
the parents’ right to control the child’s actions by re-
fusing to consent to an abortion. Jd. at 5204. It is im-
portant to emphasize, however, that the Court reached
that decision only after reviewing cases such as Meyer,
Pierce, and Yoder, and concluding that the constitu-
tional right of parental discretion and family integrity
established by those cases was outweighed by the child’s
interest in this particular situation. Jd. at 5203-04.

With the rare exceptions reviewed above, govern-
mental respect for parental decision-making is essen-
tial to preserving the integrity of family life. Under

14

our social and legal system it is the parents who neces-
sarily must assume responsibility for the myriad of
difficult decisions concerning the health and welfare of
their children. Indeed, parents who fail to do so may be
guilty of neglect. A basic corollary of that responsi-
bility or duty is the right to make those decisions free
from unreasonable outside interference. See Kleinfeld,
Balance of Power Among Infants, Their Parents and
the State, 4 Fam. L.Q. 409, 413 (1970). See also Ellis,
Volunteering Children: Parental Commitment of Min-
ors to Mental Institutions, 62 Cat. L. Rev. 840, 852
(1974) (juvenile commitment laws ‘‘have as their
paramount objective the maintenance of family au-
tonomy in dealing with aberrational behavior within
the family’’). Indeed, day in and day out, parents are
called upon to make decisions of vital significance to
the child’s ‘‘liberty”’ or ‘‘property’’ interests—should
the child be sent to a boarding school, have a tonsillec-
tomy, study Latin, get braces? Even when the state is
involved in such decisions,‘ however, it is seldom sug-
gested that the child should have a right to receive a
lawyer and a hearing to review each such parental de-
termination. The reason is clear: parents’ interest in
preserving their authority and exercising their inde-
pendent responsibility normally outweighs the child’s
interest in a legal procedure to question each such
decision.

* Frequently, some state action will be involved in such deci-
sions—for example, through state educational or medical institu-
tions. However, it should be noted that many parental decisions af-
fecting the ‘‘liberty’’ of their children do not involve any state ac-
tion. Indeed, parents frequently seek psychiatric care (as well as
other forms of medical treatment) for their children from private
physicians or residential facilities. A judicial ruling requiring due
process hearings in all such situations, absent any state regulation
or participation, would be inappropriate. See generally Jackson v.
Metropolitan Edison Co., 419 U.S. 345 (1974).

15

In determining what procedures should be required
by the due process clause when parents seek to admit
their child to residential psychiatric care, the court
below erred by failing to give any consideration at all
to the parents’ independent constitutional right and
responsibility to control the care and upbringing of
their children.

B. A Blanket Rule Requiring Immediate Due Process Hearings in
All Cases Would Result Frequently in Psychological Harm
to the Children.

Another factor which the lower court unfortunately
failed to take into account in determining what process
is due before parents can admit their child for resi-
dential psychiatric care is the very real danger that
because of the unique, emotion-laden situation created
by these parent-child conflicts, a traditional due process
hearing procedure poses severe risks, in certain cases,
of psychological harm to the children whom the court
was seeking to protect.

It is dangerously easy for courts to assume that the
procedural model mandated for juvenile delinquency
hearings, see In re Gault, 387 U.S. 1 (1967), can be
adapted with little modification to psychiatric admis-
sion cases. From a clinical standpoint, however, this
is highly improper. Indeed, if the procedural rights
granted to children in order to oppose the state in a
juvenile delinquency proceeding were applied without
exception to cases where children oppose their parents’
decision to obtain psychiatric help for the children, the
result might be to strain, if not irrevocably rupture,
the essential emotional relationship between parent and
child. See generally Wolff v. McDonnell, 418 U.S. 539,
563, 567 (1974) (‘‘there would be great unwisdom in
encasing the . . . procedures in an inflexible constitu-

16

tional straitjacket that would necessarily call for ad-
versary proceedings [that would] very likely raise the
level of confrontation’’; rules of procedure must be
“shaped by the consequences which will follow their
adoption’) ; Frost v. Weinberger, 515 F.2d 57, 66 (2d
Cir. 1975), cert. denied, 44 U.S.L.W. 3501 (U.S., Mar.
8, 1976) (extent of procedural safeguards must vary
*“‘inversely with the burden and any other adverse con-
sequences of affording it’’).

Amici must emphasize to the Court that judicial
procedures that are commonplace and comfortable for
lawyers and judges—presenting testimony in open
court, being cross-examined by counsel for an adver-
sary party, etc.—are extremely unpleasant, if not trau-
matic, for children and parents caught up in what is
at best a very difficult emotional process. The most
conscientious parents frequently struggle for some
time to accept the judgment of a psychiatrist that it
is in the best interest of their child to send him or her
to a residential institution. ‘‘For most parents hos-
pitalization [of their child is] a traumatic experience.
...’ E, HARTMANN, ET AL., ADOLESCENTS IN A MENTAL
HospitTau 84 (1968).° To subject those parents to the
additional unpleasant stage of a hearing at which ad-

°**For most parents, the placement of a child in a psychiatric
treatment facility entails considerable expense and some humilia-
tion.’’ Lessem, On the Voluntary Admission of Minors, 8 U. Micu.
J. Law Rerorm 189, 203 (1974); see Mandelbaum, Parent-Child
Separation: Its Significance to Parents, in G. Weser & B. HaBer-
LEIN, RESIDENTIAL TREATMENT OF EMOTIONALLY DistuRBED CHIL-
DREN 68, 74 (1972):

What are the feelings of parents who face the prospect of
residential treatment for their child? . . . [D]uring the ad-
mission procedure a universal reaction is that the child’s
need of residential treatment reveals their inadequacy as

17

versary counsel would cross-examine the parents con-
cerning their motivations, good faith, and possibly
their own emotional problems,‘ could have significant
negative consequences.

First, it might have the effect of deterring some par-
ents from proceeding with needed residential treatment
for their children.’ This is a serious problem because,
in spite of the common and frequently justified criti-

parents. They have been found deficient in qualities of
goodness.

ad Ellis, Volunteering Children: Parental Commitment of
une to Mental Institutions, 62 Cau. L. Rev. 840, 889-90 (1974) :

In the hearing, the la will in most cases want to examine
the parents as Cinemas te order to explore their reasons for
seeking the child’s commitment, their perceptions of the child’s
problems, their relationship to the family’s problems.

* The court below recognized that a parent’s decision to institu-
tionalize a child is a difficult one to make and that too many
procedural obstacles may deter parents from initiating needed
hospitalization (App. 800a) :

A decision to institutionalize a child is often a difficult yet
necessary decision for a child’s parent to make. It is generally
pursued only after all other alternatives have proven futile.
The state has an interest in seeing that a procedural system
will not deter parents, already faced with this difficult deci-
sion, from attempting to institutionalize children who are in
need of treatment only mental institutions can provide.

Parents, as a ‘‘normal’’ reaction to their child’s emotional ill-
ness, look for reasons why they need not or cannot hospitalize
their child. See, ¢.g., Philips, et al., Intake for Inpatient Care,
in S. Szunex, I. Beruin & M. Boatman, INPATIENT CARE FOR THE
Psycuoric Cup 66, 68 (1971): .

In our i sos ts of severely disturbed
children ot be toe in fas yn and distorted ways as
to half-invite rejection. Requests may be phrased : ‘I am calling
just to find out how long the waiting list is.’

The additional hurdle of a court hearing, mandated to occur soon
after admission, would similarly discourage, or be used as an
excuse by, confused, dejected parents who know they ought, yet
fear to hospitalize their child.

18

cisms of our nation’s mental health institutions for
children,* the appropriate form of care and treatment
for many ° retarded or disturbed children still includes
residential care for some period.” Indeed, studies con-
tinue to suggest that one of the fundamental problems

® See p. 24 and n. 21, infra.

* For most disturbed youth, of course, community care is prefer-
able to placement in a large residential institution. See Joint
Comm. oN Menta Heats or CHILDREN, Crisis iv CHILD MENTAL
HEALTH : CHALLENGE FOR THE 1970’s, at 39, 269 (1969) :

Children are best cared for and treated in atmospheres more
related to health and normal living than to illness. Every effort
should be made to keep the child as closely as possible within
his normal setting. This means that we must expand non-
hospital treatment arrangements, particularly those that could
be operated under the auspices of community-based facilities,
such as community mental] health centers, educational settings,
and social service agencies.

It ts the conviction of this Commission that no child or young
person should be placed in a mental hospitai without a careful
professional diagnosis and without preliminary attempts to
help him through other forms of treatment on an out-patient
basis in his own home or at least in his home community.
[Emphasis added].

A similar trend is occurring for the mentally retarded. As
reported by the President’s Committee on Mental Retardation, the
total number of residents in public institutions for the mentally
retarded decreased more than 10 percent between 1970 and 1975.
PRESIDENT’s COMMITTEE ON MENTAL RETARDATION, MenTAL ReE-
TARDATION : TRENDS IN StaTE Services 29 (1976).

*° See, e.g., Khan, ‘‘Mama’s Boy’’ Syndrome, 128 Am. J. Psy-
CHiaTRY 712 (1971). See generally Tizard, et al., Environmental
Effects on Language Development: A Study of Young Children in
Long-Stay Residential Nurseries, in S. Cuess & A. THomas, An-
“a0 en In CHILD PSYCHIATRY AND DEVELOPMENT 705, 728

In conclusion, we would argue that in view of the wide variety
of institutional settings, and the evidence from this and earlier
studies . . . of their varying effects on development, it is
perhaps time to abandon the concept of ‘the institution’ as a
factor in development, and to replace it with a consideration

19

in mental health care today is not ‘‘over-institutionali-
zation,’’ but in fact the shortage, due to lack of re-
sources, of high-quality residential institutions. See
R. Guasscore, M. Fisaman & M. Sonts, CHILDREN AND
MentTaL HEALTH CENTERS, PROGRAMS, PROBLEMS, PROS-
PECTS 24 (1972) (the number of young people requir-
ing psychiatric treatment is ‘‘many times the number
who at present are receiving any treatment’’) ; JOINT
ComM. oN MentTaL HEALTH OF CHILDREN, CRISIS IN
Cuitp MentaL HEALTH, CHALLENGE FOR THE 1970’s, at
6 (1969) (‘‘for every child admitted to [a good private
residential facility] ten or more are turned away be-
cause of lack of space’’; ‘‘the fact is that only a frac-
tion of our young people get the help they need at the
time they need it’’). Hospitalization must be consid-
ered as only one phase, but sometimes a necessary
phase, of the total treatment of the patient. See, e.g.,
Rabiner & Lurie, The Case for Psychiatric Hospitali-
zation, 131 Am. J. Psycuiatry 761, 764 (1974). Amici
firmly believe that hospitalization is helpful to many
patients, both adults and children, and is the treatment
of choice for many acute and severe psychiatric con-
ditions." Judicially imposed procedural requirements
should not be so onerous that they deter parents from

of the effects of different institutional regimens on different
aspects of development.

See also Rinsley & Inge, Psychiatric Hospital Treatment of Ado-
lescents, 25 Buty. of THE MENNINGER CLINIc 249 (1961); D.
Houtmes, THE ADOLESCENT IN PsYCHOTHERAPY 132-41 (1964).

11 While reliable empirical data are lacking in this area, ‘‘ [c] lini-
cal impressions do suggest, however, that good residential treatment
programs lead to more satisfactory development and functioning in
the child than might otherwise have occurred if the child had not
been admitted.’’ Lewis & Solnit, Residential Treatment, in A.
FREEDMAN, ET AL., COMPREHENSIVE TEXTBOOK OF PsycHiaTry II, at
2249 (1975).

20

seeking residential psychiatric care for their children
in appropriate cases.

Second, hearing procedures can severely strain the
relationship between the parent and the child. The
aspect of hearings which is most distressing to chil-
dren relates to the ‘‘negative remarks made about
them by the parents,’’* thereby adding to the burden
of the family attempting to deal constructively with
its problems. In the possibly analogous area of
‘‘PINS” cases (dealing with ‘‘persons in need of su-
pervision,’’ or minors who traditionally have fallen
under the jurisdiction of the juvenile court), studies
show that judicial proceedings are ‘‘damaging to an
already strained family situaticn’’:

Whatever motivates parents to bring their chil-
dren before the court, the courtroom experience
does not generally ameliorate existing animosities,
despite the supposedly ‘‘protective’’ nature of the
proceeding. To the contrary, able defense attor-
neys become surrogate parents and necessarily
proceed to ‘‘destroy’’ the natural parents verbally
on cross-examination before the defendant-child.”

Because of these problems, formal adversary proceed-
ings, especially for younger children, may create more
family dissension and risk the further breakdown of
family structure. See Note, Recognition and Protection
of the Family’s Interests in Child Abuse Proceedings,
13 J. Fam. Law 803, 813 (1974).

42 Snyder, The Impact of the Juvenile Court Hearing on the
Child, 17 Crime anp DELINQguENCYy 180, 189 (1971).

% Stiller & Elder, PINS—A Concept wm Need of Supervision,
12 Am. Crm. L. Rev. 33, 59 (1974).

14 Indeed, due process hearings, rather than deterring parents
from ‘‘dumping’’ their children, in some instances may enhance

21

Finally, studies have found that in certain instances
court hearings create in the child a considerable feel-
ing of uneasiness, if not anger.” Based upon clinical
experience, Amici have found that younger children,
especially, are likely to be intimidated and confused
by formal hearing procedures. The course of the child’s
therapy may be harmed by what the child might per-
ceive as a legal attack during the hearing on the com-
petence and judgment of the child’s therapist who is
recommending residential treatment.”

Not only do hearings create substantial risks of harm
in some cases, but their supposed benefits in these sit-
uations are often overstated. Unfortunately, the prom-
ise of procedural due process as an effective check on

the likelihood of just such an unwanted and negative outcome.
The traditional] court sanction directed towards parents who mis-
treat their children (child abuse, child neglect) is to remove the
child from the home. In the situations of concern to the court
below (‘‘unneeded’’ child hospitalization) such a sanction for
parental behavior would be meaningless. Confronted by a ‘‘vic-
torious’’ child—one not permitted by a court to be hospitalized—
parents may feel they have no other alternative but to turn the
care of the child over to the state. Thus, a child who might have
been hospitalized, visited by his or her parents, and eventually
returned home, instead would be confronted with the complete
rupture of the parent-child bond.

** Snyder, The Impact of the Juvenile Court Hearing on the
Child, 17 Caimz anp Dex~inquency 180, 181 (1971).

%* See Miller, Children’s Rights and the Juvenile Court, in
AMERICAN PsycHlaTric Ass’N, ScrentTiric Proceepines in Sum-
MARY ForM, 129th AnNuaL Meetine 35, 36 (1976):

The adversary role of lawyers is antithetical to good child
care for a variety of reasons. The disturbed child who goes
to court abandons the right to confidentiality and a perceived
attack on a therapist may negate the value of therapy. A child
~— 2 a therapist as being devalued. Repeated legal

as to the necessity for treatment can create doubt in

the child as to whether the designated helpful nm can be
pful perso

22

improper institutionalization frequently proves illu-
sory. Most judicial commitment proceedings are ‘‘ per-
functory, ritualistic, impersonal, superficial, and pre-
sumptive of mental illness.’’ Beran & Dinitz, An Em-
pirical Study of the Psychiatric Probation-Commit-
ment Procedure, 43 Am. J. ORTHOPSYCHIATRY 660
(1973). One study of 64 such hearings found that the
average hearing lasted only 4.45 minutes, with the
court most often accepting uncritically the psychiatric
recommendation. Id. at 664, 667. Other studies have
reached similar conclusions. See, e.g., T. SCHEFF, BEING
MENTALLY Itt: A SocroLocicaL THEORY 135 (1971).
Thus, simply providing hearing procedures, especially
so soon after admission that there is little opportunity
for the institutional psychiatrists to present a full
report and meaningful evaluation to the tribunal, may
not provide the significant protection plaintiffs seek.
Nor will it contribute at all to dealing with the larger
problem of improving the care and treatment available
for mentally ill and retarded children.”

Moreover, while advocates of hearing procedures
point out that psychiatric commitment in our society
unfortunately continues to carry with it an element of

17 See Tamilia, Neglect Proceedings and the Conflict Between
Law and Social Work, 9 Duquesne L. Rev. 579, 589 (1971)
(‘‘Equal justice through procedural safeguards that does not
require substantive justice for each individual is not enough’’) ;
J. Pouier, THE Ruue or Law anD THE ROLE or PsycHitTry 100
(1968) :

While the progress made in protecting the constitutional rights
of the child in the adjudicatory process is to be welcomed,
it will in no way compensate for the lack of dispositional
remedies. Gault may protect some children from unfair hear-
ings and wrongful findings, but it will not provide one dollar’s
worth of professional mental health services or one hour of
care for any troubled child.

23

stigma, see App. 795a," what they overlook is that such
stigma is far more likely once a court has heard evi-
dence and made a judicial commitment determination
than it would be if a child is admitted voluntarily to
a hospital by his or her parents, without court inter-
vention.”

It should also be noted that the procedural system
mandated by the court below would be extremely time-
consuming and expensive. After performing other
medical and administrative duties, the average hospital
staff psychiatrist is able to devote only 47 percent of
his or her time to direct patient care. Jomnt INFORMA-
TION SERVICE, ELEVEN Inpices 14 (1971). Any signifi-
cant increase in the number of hearings required not
only would encroach still further into the psychiatrists’
limited time for patient care, but also would require the
expenditure of substantial amounts of money for legal
fees, court personnel, etc.—costs which most likely
would be drawn from the already too limited state
mental health budgets.”

% See generally MacMillan, et al., The Mentally Retarded Label:
A Theoretical Analysis and Review of Research, 79 Am. J. MENTAL
Derictency 241 (1974); Roth, Some Comments on Labeling, 3
Buuu. Am. Acap. Psycuiatry & Law 123 (1975).

Indeed, voluntary commitment procedures were designed
originally for the very purpose of reducing such stigma.

*° See Friendly, ‘‘Some Kind of Hearing,’’ 123 U. Pa. L. Rev.
1267, 1276 (1975) :

It should be realized that procedural requirements entail the
expenditure of limited resources, that at some point the benefit
to individuals from an additional safeguard is substantially
outweighed by the cost of beet = such protection, and that
the expense of protecting those likely to be found undeserving
will probably come out of the pockets of the deserving.

24

Amici recognize that abuses do occur under the pres-
ent system. Unfortunately, all too many of the nation’s
psychiatric institutions are unaccredited and lack the
resources necessary to provide high-quality care and
treatment for the many children requiring that assist-
ance.” Moreover, there can be no doubt that in some
cases unfit parents may seek to abandon their respon-
sibilities by ‘‘dumping”’ their children into an inappro-
priate residential institution. However, the remedy for
these problems must be fashioned carefully by the
courts so as not to deter or make unduly difficult the
appropriate use of high-quality institutions by the vast
majority of conscientious parents who are seeking help
for their disturbed or retarded children. In the section
that follows Amici will suggest how we believe the
Court should balance these factors in order to provide
for due process hearing procedures in the situations
where they can be most effective, while avoiding the
adverse consequences that inevitably would follow from
the blunderbuss approach of the lower court.

21 See Jomsnt ComM. ON MENTAL HEALTH oF CHILDREN, CRISIS IN
Cuitp MentaL HEALTH: CHALLENGE FOR THE 1970’s, at 42 (1969)
(‘‘most [residential care facilities for mentally ill children] are
disgraceful and intolerable’’); Nationa Ass’N FOR RETARDED
Citizens, Poticy STATEMENTS ON RESIDENTIAL Services 6 (1968)
(‘‘{m]ost residential facilities are still custodial-oriented and
lack programs based on individual needs’’) ; id. at 6, 9:

Most residential facilities for the retarded throughout the

country are large, overcrowded, and impersonal . . . oftentimes
basic health and safety standards are not met .. . many resi-

dents .. . are rarely seen by a physician. .. . Abuse, neglect,
accidents and questionable deaths are not adequately investi-
gated or reported.

Amici have demonstrated in Section II above that
due process hearing procedures have a very real po-
tential for harm to the interests of both parent aad
child in certain circumstances. The most serious <e-
ficiency of the decision below is that it ignored these
potential harms and greatly oversimplified the complex
clinical realities in order to fit this case into a tradi-
tional, unbending due process mold. The class of plain-
tiffs before this Court is far from uniform, however,
and the procedural requirements best suited to their
differing interests must also vary, depending on several
key factors totally ignored by the district court.

The interests of the child and the parent, as well as
the potential of hearing procedures for either good or
harm, will diffe: radically depending on such factors
as (1) the identity of the party seeking the child’s
psychiatric admission—whether it is a parent, or a
state institution such as the welfare department; (2)
the age of the child; (3) the quality of the proposed
institution; and (4) the duration of the proposed com-
mitment—whether, for example, it is a weekend of
‘*respite care’’ designed to assist parents of a retarded
child, or whether instead it is an indefinite institu-
tionalization of a family’s profoundly retarded or dis-
turbed child who may be expected to remain in the
institution for many years. Such factors as these were
not considered in the district court’s undifferentiated
ruling requiring the same hearing procedures for all
cases. Amici respectfully urge this Court to recognize
these very real differences as they relate to the pro-
priety of a traditional due process model, and to bal-

26

ance these factors so as to except from adversary
hearing requirements any instance in which al! of the
following four factors are met: (1) a parent in an
intact family wishes to admit a (2) pre-adolescent
child to (3) an accredited institution (4) for a short-
term period (¢.g., less than 45 days). Amici will set out
below the considerations that we believe should lead
the Court to this resolution.

First, the clearest line that should be drawn is be-
tween parent-initiated admissions and those instances
in which an institutional guardian, such as a state wel-
fare department, seeks to transfer the child from one
institution into another. The dangers of adversary
hearing procedures referred to in Section IIB above—
such as the risk to the parent-child emotional relation-
ship inherent in such hearings—are not so compelling
when it is a state agency, rather than a parent, seeking
the admission. Moreover, the interest in parental in-
tegrity and the assurance of parental responsibility
to minimize risks of abuse are not present in such
eases. Accordingly, where a psychiatric admission is
sought by a state institution, rather than a parent in
an intact family, Amici believe that hearing procedures
may be appropriate.

A second factor ignored by the court below is the age
of the child. All of the named plaintiffs were fourteen
years of age or older at the time of their initial hos-
pitalization. See p. 3, supra. Nevertheless, the rem-
edy ordered by the district court extends to all chil-
dren of any age, even those too young to understand or
participate meaningfully in the hearing procedures.
It is significant to note that the Pennsylvania statute
at issue here includes procedures for adolescents sep-

27

arate from those for pre-adolescents.* Amici believe
that such an age distinction has a highly significant
effect on the impact of hearing procedures on children,
and it should be legally recognized. The professional
literature establishes that when children reach a de-
velopmental age™ of approximately 13 they begin to
be significantly more capable of rational and analytical
evaluation of their own best interests, as well as artic-
ulate expression of their views. Amici believe that
Pennsylvania has appropriately determined that ado-
lescent children should be entitled to an opportunity
to present their views whenever they disagree with
their parents’ decision to seek residential care for them.
Adolescents will be far less threatened by the hearing

*2 See p. 3, supra. Indeed, under the newly enacted state Act,
adolescents 14 years of age and older are now treated the same
as adults. See Section I, supra.

™ The concept of developmental age is quite different from that
of chronological age and, in instances where the two differ signifi-
cantly, developmental age should control. See generally T. ACHEN-
BACH, DEVELOPMENTAL PsycHoPpaTHOLOGy (1974). For example,
severely retarded children by definition will rarely, if ever, have
a developmental age placing them in the adolescent range. Mentally
ill children, also, will frequently exhibit signs of developmental
regression as a symptom of their illness.

**The authorities vary somewhat concerning the precise de-
velopmental age at which these skills are present. The consensus is
that the age range is from 12-14. See, e.g., Schwartz, Children’s
Concepts of Research Hospitalization, 287 New Eno. J. Men. 589
(1972) ; Note, State Intrusion into Family Affairs: Justifications
and Limitations, 26 Stan. L. Rev. 1383, 1395 (1974). See —
J. Plager, Moga, JupemMEnr or THE CHD 17, 40 (1932); A.
Gesmut, F. Inc, & L. Ames, Yours: Tue Years rrzom TEN 10
Srxrgzn 175-182 (1956); Neubauer, Normal Development in
Childhood in B. Wotman, Manvat or Cui PsYcHoPaTHOLOGY
11 (1972). Amici believe that states should have latitude to select
an appropriate age distinction within this general range, as J’enn-
sylvania has done.

28

procedures and will be much more capable than pre-
adolescents of using these procedures effectively.

A third factor which was ignored by the lower court
is the quality of the institution being proposed for the
child. Amici believe that this factor not only has pro-
found significance from the standpoint of the child and
the mental health professional, but also should be rele-
vant to the legal determination of what procedural
rules are appropriate in these instances. In balancing
the interests of the child in a due process hearing
against the other factors referred to in Section LI,
above, the nature and extent of the possible injury to
the child’s constitutionally protected interests hardly
should be deemed irrelevant. The sad truth is that the
quality of mental health institutions today for chil-
dren throughout the nation varies dramatically. There
are many excellent institutions that are fully staffed
and possess the resources necessary to provide the
child promptly with the treatment best suited to his
or her needs. Many other institutions, however, are
woefully lacking in trained staff and resources and in
some cases may do little more than ‘‘warehouse”’ the
children. See p. 24 & n. 21, supra. The Joint Com-
mission on Accreditation of Hospitals, a recognized
professional body which certifies institutions as meet-
ing the minimum standards necessary for appropriate
care, has denied accreditation status to numerous in-
stitutions throughout the country which are failing to
provide adequate mental health care for children and
adolescents. Amici believe that the risk of psychological
injury to children who are placed in such unaccredited
institutions is sufficiently high that it outweighs the
possible harm of hearings. Amici recommend that no
admission to an unaccredited institution should be

sanctioned by the state absent a due process hearing
at which the alternatives to such a placement would be
fully evaluated.

Finally, the lower court lumped together in its rul-
ing virtually all admissions, regardless of duration.
It required an initial ‘‘probable cause’’ hearing within
72 hours of the child’s admission, and it required notice
of such hearing to the child and the child’s attorney
at least 48 hours ‘prior to the hearing. Thus, the ap-
pointment of an attorney for the child and the initiation
of adversary hearing procedures under the court’s
order must begin within the first 24 hour’ Amici believe
that in view of the potentially harmfui aspects of ad-
mission hearings discussed above, a constitutionally im-
posed procedural rule should not forbid states from
taking into account the very significant differences
between short-term and long-term institutionalizations.
For example, in caring for the retarded it is a gen-
erally accepted principle that parents whenever pos-
sible should try to keep the child in the home.” This
ean place great strains, both physical and psycholog-
ical, on the family. Therefore, it is quite common for
institutions for the mentally retarded to assist families
by making a certain number of beds available for tem-
porary ‘‘respite care,’’ helping families to avoid long-
term institutionalization of their retarded child by
giving them an opportunity for a weekend or short
vacation™ in which they can be relieved of the difficult

*8 See generally W. WoLrensBEeRceR, NORMALIZATION: THE PRIN-
CIPLE OF NORMALIZATION IN Human Services (1972).

**In Pennsylvania such relief care is available for periods rang-
ing from one day to four weeks. Pa. Dept. or Pus. WeLFrare, Orricz
oy MentaL RETARDATION, GUIDELINES FOR THE OPERATION OF THE
Famity Resource Services Program 9 (1975).

30

burden of caring for their retarded child 24 hours a
day, seven days a week.” Under the decision of the
court below, any such respite care that lasted more
than 72 hours could not be obtained by the parents
without incurring the time-consuming, expensive, and
emotionally difficult process of a ‘‘probable cause’’
hearing, in which the tribunal presumably would assess
whether the parents were being selfish or otherwise
acting unreasonably in seeking such assistance. Such
a procedure would impose a cruel price on the very
people who are trying the hardest to care for their
children and to avoid placing that responsibility on
the state. To force states to impose such procedures
as a constitutional requirement simply makes no sense.
Moreover, there are other types of short-term institu-
tional programs (for example, treatment for enuresis,
or bed-wetting) which require only a few days’ or
weeks’ residential care and which might properly be
treated very differently from cases in which parents
are seeking long-term institutionalization for their
children.

This Court has already recognized and affirmed the
appropriateness of a state’s allowing short-term psy-
chiatric institutionalization prior to commencement of
due process hearing procedures. Briggs v. Arafeh, 411
U.S. 911 (1973), aff’g summarily Logan v. Arafeh, 346
F. Supp. 1265 (D. Conn. 1972). In Arafeh, this Court
affirmed the decision of a three-judge United Sta‘es
District Court rejecting a constitutional challenge to
a state statute that authorized involuntary mental hos-
pital commitment of adults who are certified by physi-

27 The latest data available to Amici indicate that in 1974-75,
525 retarded children in Pennsylvania received such respite care.

31

cians to be suffering from mental illness and to be
dangerous to themselves or others. The statute in ques-
tion authorized confinement without any prior notice
or hearing and provided that if the patient objected
to the hospitalization, and the state nevertheless wished
to continue the commitment, the patient would receive
the right to counsel and an adversary hearing ‘‘not
more than 45 days’’ after the initiation of commitment
proceedings. Logan v. Arafeh, supra, 346 F. Supp. at
1267 n. 3. In language that is directly applicable
to the instant case, the district court held that the 45-
day period before hearing procedures would be re-
quired is not only constitutional, but entirely reason-
able in light of the expert testimony from professionals
in this field (id. at 1268-69) :

Testimony received from expert witnesses es-
tablished that the fifteen day leeway after initial
commitment before judicial proceedings must be
begun is not simply for the purpose of delay. It has
a —— aspect as well. There is a compensating
advantage to the committed person because in
man cases during this period the medical staff
at the hospital can adequately alleviate his mental
illness or by use of non-emergency diagnostic pro-
cedures determine that he is not a ‘danger to him-
self or others.’ In such cases, the stigma of court
record is avoided and the length of confinement is
shortened. It must be remembered that commit-
ment has not been undertaken for the sake of penal
detention. The patient is committed for treatment
and care, and some knowledge of his mental condi-
tion can be gained by visual observation and diag-
nostic tests. This takes time. On the other hand,
where a full blown court trial must be had pursuant
to §17-178, additional time to undertake more
elaborate testing of the patient’s mental condition,
and a more detailed probe into his relevant his-

32

tory, by both the hospital authorities and the ex-
pert witnesses who will testify in behalf of the
patient is needed.

While it is possible that all of this could be con-
centrated into a shorter period of time, we are
satisfied that the time which is allowed by the
statute is not so unreasonably long as to amount
to a denial of due process. The time provisions set
by the legislature are fully supported by the opin-
ions of competent physicians specializing in the
treatment and care of persons suffering from men-
tal illness. We hold that there is a rational basis
for the time allowed by the statute.

The Briggs v. Arafeh precedent was followed re-
cently in Coll v. Hyland, 411 F. Supp. 905, 910 (D.N.J.
1976) (three-judge court) (20-day delay between com-
mitment and hearing constitutional). See also Saville
v. Treadway, 404 F. Supp. 430, 437-38 (M.D. Tenn.
1974) (upholding 45-day ‘‘respite care’’ and six-month
‘Short-Term Training Admissions’ for mentally re-
tarded children, absent hearing procedures) ; Fhagen
v. Miller, 29 N.Y.2d 348, 278 N.E.2d 615, 328 N.Y.S.2d
393, cert. dented, 409 U.S. 845 (1972) (upholding pro-
cedure allowing confinement for 15-25 days prior to
hearing). The court below in the instant case erred
in ignoring that precedent, which is directly applicable
here.*

The four factors discussed above suggest the type of
balancing approach that Amici believe the lower court
should have utilized. In cases where the state rather
than a parent has initiated the commitment proceed-
ing, there are insufficient countervailing factors to out-

** Lower courts are required to give no less precedential weight
to this Court’s summary affirmances than to its other holdings.
See Hicks v. Miranda, 422 U.S. 332, 344-45 (1975).

33

weigh the child’s right to a due process hearing. Sim-
ilarly, if the proposed admission is to an unaccredited
institution, Amici believe that the risk of harm to the
child is high enough to outweigh the potential dangers
inherent in hearing procedures—damage to family au-
tonomy, psychological harm of parent-child conflict
at hearing, or the possibility that procedures will de-
ter parents from initiating the admission. Also, as
discussed above, the age distinction drawn by Penn-
sylvania in granting to adolescent children the right
to be heard in all cases before admission is constitu-
tionally appropriate, in our view, because of the older
children’s increased ability and interest in expressing
their opinions. The final distinction Amici are urging
—between short-term and long-term admissions—also
flows logically from a consideration of the shifting in-
terests and risks in these cases. A basic premise of
admissions for a short period, such as 45 days, is that
the parents intend to maintain or strengthen the fam-
ily unit and will resume care of the child at the end of
the 45-day period. Such a period allows for emergency
psychiatric intervention, evaluation of the child’s psy-
chiatric needs, or short-term intensive treatment. In
cases where continued institutionalization appears nec-
essary, the short delay prior to a hearing would assist
the mental health professionals in developing the most
appropriate information to present to a tribunal con-
cerning the child’s condition and their recommended
treatment plan. Because the basic premise of a rule
allowing short-term institutionalization without prior
hearing procedures is that the child will return home
shortly, the danger of parental abuse, or ‘‘dumping,”’
is lessened significantly. The deprivation to the child
in terms of lost liberty is also reduced. Indeed, it is ©
not substantially greater than the loss sustained by a

34

child hospitalized for a serious but necessary surgical
procedure. Given the desirability of minimizing parent-
child conflict when it is expected that the child will
be returning soon to the family, formal adversary pro-
ceedings in these cases should be avoided.

The situation is quite different, of course, when par-
ents seek a long-term institutionalization of their
child. Whether such a parental judgment is based on a
genuine feeling that it is in the child’s best interest,
or on a bad faith effort to ‘‘dump”’ the child, it opens
the prospect that the parents may terminate the pri-
mary intra-family relationship they have had with the
child. Even if the parents will be frequent visitors or
active participants in the course of institutional treat-
ment, the child’s primary frame of developmental ref-
erence most likely will shift to some degree from the
family to the institution. Thus, the intact family unit
is being replaced, through parental choice, by the men-
tal hospital as the primary agent of child rearing dur-
ing a significant period of child development. Because
the parents have chosen to relinquish control of the
child to the institution, the possibility of an adversarial
conflict between parents and child would not pose as
serious a threat to ongoing intra-family relationships
in such instances as would be the case when only short-
term institutionalization is sought.

Thus, Amici believe that a proper resolution of
these factors would require that any due process hear-
ing procedures mandated by the Court should not
extend to those instances in which all of the following
four factors are present: (1) a parent in an intact
family wishes to admit a (2) pre-adolescent child to
(3) an accredited institution (4) for a short-term pe-
riod (e.g., less than 45 days).

35

Once it is determined in what instances due process
hearings should be required, Amici urge the Court not
to limit the states’ flexibility in seeking to establish
the most appropriate types of forums and procedures
to implement that decision. In most instances, the
judgment to be made concerning possible institutionali-
zation of a child requires consideration of many factors
in addition to the child’s mental condition—for exam-
ple, what is the situation in the home, and how can the
most appropriate treatment and counseling for other
members of the family be provided? Amici believe that
courts may not be the ideal forum for such determina-
tions. Rather, an administrative model for the tribunal
that reviews such matters may be the most effective
way to include in the decision-making process all of
the relevant input, psychiatric as well as legal. See
Hoffman & Dunn, Beyond Rouse and Wyatt, An Ad-
ministrative-Law Model for Expanding and Imple-
menting the Mental Patient’s Right to Treatment, 61
Va. L. Rev. 297 (1975). Such an administrative tri-
bunal might include, for example, a psychiatrist, a
lawyer, and another mental health professional.”
States should be free to experiment with a variety of
mechanisms for implementing due process hearing
requirements.

Finally, Amici urge this Court, in reviewing the de-
cision below, to insure that whatever rules of procedure
are finally mandated will be implemented in a manner

2° See also Task Force on Mental Health of Children and Youth,
The Rights of a Child To Refuse Treatment, 1 ManvaTe, PENNSYL-
vania’s Menta HeattH Newswetrer, Oct. 1973, at 2; Mahan,
et al., A Mechanism for Enforcing the Right to Treatment: The
Human Rights Committee, Law anv PsycHo.ocy Rev., Spring -
1975, at 131, 147-48 (relating to human rights committees).

36

designed to protect the best interests of each child
affected by such rules. The order of the court below
requires that all children already admitted to mental
hospitals must be ‘‘either discharged or released or
recommitted according to the procedures required by
our opinion and order’’ within 120 days of the effec-
tive date of the order. App. 851a. Amici agree that any
new procedural requirements appropriately should be
applied retroactively to children already residing in
institutions. Indeed, apart from constitutional prin-
ciples, Amici believe that periodic review of the treat-
ment and condition of mental patients—such as that
provided for in Section 108 of the new Act referred
to at page 7, above—is desirable from a clinical
standpoint. Amici strongly oppose, however, any arbi-
trary deadline that would require a large number” of
formal hearing procedures to be initiated at once in
order to implement new procedural requirements.”
Such a deadline would reduce the opportunity of the
hearing officials and the mental health professionals to
examine each individual case carefully in order to de-
termine the most appropriate future course for each
individual patient. Any court order that resulted
simply in either pro forma hearings or mass de-institu-
tionalization,” without regard to the best interests of

*°The Chief Justice of the Pennsylvania Supreme Court esti-
mates that the decision below would require judicial intervention in
6000-8000 cases within five months. App. 864a.

*? See Reich & Siegel, Psychiatry Under Siege: The Chronically
Mentally Ill Shuffle to Oblivion, 3 Psycu. Annas 35, 55 (1973)
(‘‘[d]ischarges and admissions at the hospitals should be based
on individual circumstances rather than follow broad general policy
shifts’’).

32 4 caution on deinstitutionalization. The bandwagon for com-
munity-based programs is gathering momentum, and it is
entirely possible that the precipitous closing of large institu-

37

the individual patients, would be a cruel deprivation
of the rights of the plaintiffs” whom the court below
and Amici are seeking to protect.

tions without sufficient preparation in the community to receive
and care for the children released may defeat a fundamentally
sensible reform and produce a new crisis in caring. We actually
know less about the effects of placing individuals in community
settings than we do about the effects of consigning them to
large institutions. Thus, progress in a community direction
must be accompanied by the development of guidelines that
will prevent a movement of children from bad large institu-
tions to bad small ones.

N. Hosss, THE Futures or CHILDREN, CATEGORIES, LABELS AND

THEIR CONSEQUENCES 220 (1975).

33 See Slovenko & Luby. On the Emancipation of Mental Patients,
3 J. Psycuiuatry anp Law 191, 205-06 eM a
Mental patients are going from the ing pan into the ‘
Under the guise of civil liberties the state mental hospital has
been transported to the inner city. It is true that many
persons in institations have been dehumanized through neglect
and the failure of society to meet their needs, but turning
them back into a so-called community will simply change the
geography of neglect, and apparently exacerbate it. In today’s
world, neglect in the community dwarfs neglect in hospitals.
Fundamentally the need that must be faced is the establish- .
ment of programs to meet the needs of people whether they
are in institutions or in the community.

38

CONCLUSION

For the foregoing reasons, Amici respectfully urge
this Court to vacate and remand this case in order to
allow entry of a new order that will strike an appro-
priate balance, as outlined in this Brief, between the
procedural rights of the plaintiffs and the competing
interests that make adversary hearing requirements
counter-productive in certain well-defined circum-
stances.

Respectfully submitted,

ALLEN R. SNYDER
Hocan & Hartson
815 Connecticut Avenue, N.W.
Washington, D.C. 20006

Attorney for Amici Curiae

a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2178%3A19. Public record. Not legal advice.