# Appendix — Secretary of Public Welfare of Pa. v. Institutionalized Juveniles > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1099%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 442 U.S. 640 ## Text _—_——— Supreme Court, U. S, FILED AUG 2 i978 VOLUME I1I—Pages B67 a-1 1 PS MICHAEL RODAK, JR., CLERK APPENDIX in the Supreme Court of the Unjted States October Term, 1978 No. 77-1715 SECRETARY OF PUBLIC WELFARE, Common- wealt: of Pennsylvania, ALDO COLAUTTI; JOHN FONG, Directo’ of Haverford State Hospi- tal; NICHOLAS D’ALUISIO, Director of Polk State School and Hospital; C. DUANE YOUNG- BERG, Director of Pennhurst State School and Hospital, sued as representative of all others similarly situated, Appellants v INSTITUTIONALIZED JUVENILES in Pennsyl- _ vania Inst.tutions for the mentally ill and mentally retarded, namely, KEVIN S.; RICHARD S.; JAMES PAUL M.; EDWARD B.; RAYMOND C.; WILLIAM B.; FRANCIS B.; MARIA L.; THOM- AS W.; NANCY LOUISE D.; GINA S.; and GEORGE §., by their next friend and guardian ad litem, David Ferleger, individually and on behalf of all others similarly situated, Appellees Appeal From the Judgment of the United States District Court for the Eastern District of Pennsylvania ————————————————————————————————————— APPEAL DOCKETED MAY 31, 1978 JURISDICTION NOTED JUNE 19, 1978 TABLE OF CONTENTS PAGE Volume I Relevant Docket Entries ..............2--005- la Complaint—November 16, 1972 .............. 8a EEE OTT PET TTT Ts TT 24a First Set of Interrogatories to Defendants ....... 25a Motion for Class Action ..................55. 29a Geter. Dated Agee FT. 1GFS occa ivctvevewcsess 31a Motion for Sealing of Affidavits and Protection of Se a's oe end Snu Gh dask Gack abo &rhew? 32a NS Ac a i a a a Oy 34a Pre-Trial Oral Examination of Dr. Barbara Arm- strong: EEE rr 42a CMR TEOIIO, onc ccc ccc cceces 108a Redirect Examination ............... i21a Recross-Examination ................ 130a Exhibit A—Class Action Suit ............. 133a Exhibit B—Individual Patient Summaries ... 135a Exhibit C—Individual Patients Summaries ... 166a Hearing, May 10, 1973 ..............000 eee: 18la Incarcerated Juveniles—Why? The Mental Institu- tionalization of Juveniles in Pennsylvania .... 210a Argument on Plaintiffs’ Motion for a Class Action Determination and on Defendants’ Motion To Dismiss, April 16, 1974 .................. 232a Order Dated April 29, 1974 ......--++-eee eee on Di gs fe tech tabs beth bccn euRwese esas Sams Final Pre-Hearing Order ......i.24----ee0e0> ~ Summaries of Selected Patients .......---++++++ a Pre-Trial Oral Examination of Dr, Max Sugar: Direct Examination .........--+++++5 et Cross-Examination .......----+++> sees ~ Redirect Examination ...¥..06--4.+6.6% 43 Volume II Redirect Examination (cont’d.) -....... t naaié os pony Recross-Examination ......- este aoe a Deposition of Dr. Joel S. Feiner, M.D.: ) f : Direct Examination .......----- htt 465a Cross-Examination ..... ee ae vee 484a Order Dated August 21, 1974 ......-.. esangess Sane The Evidence: Beal kchoina® Evidentiary Hearing, First Day’ Ae . winbe- ‘. ' Dr. Henry O. Kandler: | ; wich Direct Examination ...... : fee. et a 337a Cross-Examination ...... BL Sas wed. os 56Oa Direct Examination ..... Ved ew ae we sae 54la Cross-Examination ..........24.5...5" 548a Redirect Examination’ ....... «mie 926a Motion for Class Action IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] MOTION FOR CLASS ACTION Plaintiffs, by their attorney and guardian ad litem, : hereby move the Court to declare this a class action, pur- suant to Rule 23(a) and 23(b) (2) of the Federal Rules of Civil Procedure and to allow it to be maintained on behalf of the following class and subclasses of plaintiffs and against the following class of defendants: Plaintiff Class and Subclasses: The members of the class of plaintiffs are all persons who are or who may be committed to insti- tutions for the mentally ill and the mentally retarded in Pennsylvania upon application of parents or guardians and without notice, hearing, counsel and other procedural safeguards. Subclass A of plaintiffs includes all those per- sons under 14 years of age committed under Section 201 of the Mental Health Procedures Act of 1976. Subclass B of plaintiffs consists of all persons 18 years of, age or younger committed under Sections 402 and 403 of the Mental Health and Mental Re- tardation Act of 1966. Motion for Class Action 927a Defendant Class: , The defendant class are al! directors of all men- tal health and mental retardation facilities in Penn- sylvania, all of which are subject to the challenged statutes and all of which are subject to regulation by the defendant Secretary of Public Welfare. For the purposes of this motion and the proposed classes, “‘facilities” refers to those institutions for residen- tial care defined in Section 102 of the Mental Health and Mental Retardation Act of 1966 and in Section 105 of the Mental Health Procedures Act of 1976. The requirements of Rule 23 are met in that: the class is so numerous that joinder of all members is im- practical (the plaintiffs number in the thousands, the de- fendants include scores of facility directors); there are questions of law and fact common to the class (see para- graph 13 of Amended and Supplemental Complaint) ; the claims of the representative parties are typical of the claims of the class (true as to both defendants and plain- tiffs) ; the representative parties will fairly and adequate- ly protect the interests of the class; and the parties oppos- ing the class have acted on grounds generally applicable to the class, thereby making appropriate final injunctive and declaratory relief with respect to’the class as a whole. One important word with respect to the class repre- sentation and adequacy thereof. The Supreme Court’s ad- monition to this Court that it “stop, look and listen” be- fore certifying a class, noting the state’s regulations and the potential distinction between younger and older chil- dren, Kremens v. Bartley, Slip Opinion at 14-15, should and must be responded to by emphasizing that this case deals with the minimum due process required for all com- we ——_ ae (we. enue a Gm a rete ee opener - 928a Motion for Class Action mitments, of whatever age the child, and whatever the alleged “disability.” Thus, the facts of the case require no further counsel or further subclasses for a proper and adequate disposition. The Court might also wish to note that present counsel has properly and competently main- tained this action as guardian ad litem and the Court might specifically make a finding of no conflict of inter- est among members of the plaintiff class. There can be no doubt that a class action is an ap- propriate vehicle for determination of due process claims of mental patients. E.g., Meisel v. Kremens, 405 F. Supp. 1253 (E.D. Pa. 1975) (invalidating summary revocation of mental patients’ long term leave); Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976) (Three-Judge Court) (in- validating civil commitment statute) ; Bell v. Wayne Coun- ty General Hospital, 384 F. Supp. 1085 (E.D. Mich. 1974) (civil commitment); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (civil commitment) ; Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974). No further memorandum will be submitted in sup- port of this motion, except at the Court’s direction or in response to any filing by the defendants. For the convenience of the Court, and should the Court not file a memorandum on this issue, plaintiffs have attached a draft proposed order for class action determi- nation. Respectfully submitted, (s) David Ferleger David Ferleger, Esquire 2321 Sansom Street Philadelphia, Pa. 19103 Motion for Class Action 929a Certificate of Service David Ferleger, Esquire, hereby certifies that on the 8th day of November, 1977, he mailed true and correct copies of the foregoing to all counsel for the defendants herein and to counsel for the amici, by U.S. Mail, first class postage pre-paid. (s) David Ferleger 930a Interrogatories To Defendants IN THE UNITED STATES DISTRiCT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] INTERROGATORIES TO THE DEFENDANTS Pursuant to Rule 33 of the Federal Rules of Civil Procedure, plaintiffs request the defendants to answer, under oath, the following interrogatories: 1. How many juveniles, mentally ill and mentally retarded, were confined in state owned and operated in- stitutions for the mentally ill as of October 31, 1977, (1) under Section 201 of the Mental Health Procedures Act of 1976, (2) under 302, 303, 304 and 305 of that Act, (3) under Sections 402, 403, 405 and 406 of the Mental Health and Mental Retardation Act of 1966. For sections (1) and (2), “juvenile” means a person under 14; for section (3), juvenile means a person between 0 and 18. 2. How many juveniles (defined as a person be- tween 0 and 18) were confined in state owned and op- erated state schools and hospitals for the retarded as of October 31, 1977, under Sections 402, 403, 405 and 406 of the Mental Health and Mental Retardation Act of 1966. 3. How many juveniles were confined as of Octo- ber 31, 1977 in licensed facilities in Pennsylvania pursu- Interrogatories To Defendants 931a ant to the categories in interrogatory No. 1 and accord- ing to the definitions in that interrogatory. 4. For each juvenile identified in interrogatories 1 through 3 above, obtain the identity and nature of rela- tionship of the applicant for admission/commitment, and specify in aggregate form that information (e.g., parent, foster parent, county welfare department, police, other relative, juvenile court official, neighbor) . Please reply within 30 days to David Ferleger, coun- sel for:plaintiffs, at the address below. (s) David Ferleger David Ferleger, Esquire 2321 Sansom Street Philadelphia, Pa. 19103 215-567-2828, 735-8409 Counsel for Plaintiffs C22 oo ela eee ewe ee 932a Answer to Interrogatories IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] DEFENDANTS’ ANSWER TO PLAINTIFFS’ INTERROGATORIES Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendants here submit the following An- swers to Plaintiffs’ Interrogatories. 1. As of October 31, 1977, there were in state- owned and operated institutions for the mentally ill: 100 juveniles under Section 201; 0 juveniles under Section 302; 0 juveniles under Section 303; 8 juveniles under Section 304; 2 juveniles under Section 305; 0 juveniles under Section 402; 0 juveniles under Section 403; 0 juveniles under Section 405; 1 juvenile under Section 406. 2. As of October 31, 1977, there were in state- owned and operated centers for the retarded: 984 juveniles under Section 402; 1 juvenile under Section 403; 0 juveniles under Section 405; 66 juveniles under Section 406. 3. As of October 31, 1977, there were in licensed facilities in Pennsylvania: Answer to Interrogatories 933a juveniles under Section 201; juveniles under Section 302; juveniles under Section 303; juveniles under Section 304; juveniles under Section 305; 2052 juveniles under Section 402; 3 juveniles under Section 403; 0 juveniles under Section 405; 47 juveniles under Section 406. 4. The juveniles identified in paragraph one through three above were admitted/committed to these institutions by persons or agencies as follows: 2689 by natural parent; 5 by foster parent; 300 by county welfare agencies; 0 by police; 21 by other relatives; 119 by Juvenile Court; 0 by neighbor; 10 by guardian; 120 by others. Respectfully submitted, (s) Norman J. Watkins NORMAN J. WATKINS Deputy Attorney General ROBERT B. HOFFMAN Assistant Attorney General J. JUSTIN BLEWITT, JR. Deputy Attorney General Chief, Civil Litigation ROBERT P. KANE Attorney General 934a Answer to Interrogatories IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [ Caption Omitted in Printing] AFFIDAVIT I, MARGARET UNDERKOFFLER, being duly sworn according to law, hereby depose and say that: 1. The foregoing answer on behalf of Defendants to Plaintiffs’ Interrogatories are true and correct to the best of my knowledge, information and belief. (s) Margaret Underkoffler Margaret Underkoffler Subscribed and sworn to before me this 8th day of December, 1977. My Commission Expires May 13, 1978. (Seal) Answer to Interrogatories 935a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] AFFIDAVIT I, KATHLEEN M. ETZWEILER, being duly sworn according to law, hereby depose and say that: 1. The foregoing answers on behalf of Defendants to Plaintiffs’ Interrogatories are true and correct to the best of my knowledge, information and belief. (s) Kathleen M. Etzweiler Kathleen M. Etzweiler Subscribed and sworn to before me this 8th day of December, 1977. Eva R. Hartman Notary Notary Public My Commission Expires May 13, 1978. (Seal) Ws ae ee . : 936a § Supplemental Answers to Interrogatories IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [ Caption Omitted in Printing] DEFENDANTS’ SUPPLEMENTAL ANSWERS TO PLAINTIFFS’ INTERROGATORIES Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Defendants here submit the following Supple- mental Answers to Plaintiffs’ Interrogatories. The Sup- plemental Answers provide information on the number of juveniles in licensed mental health facilities and the man- ner of their placement, in response to questions three (3) and four (4) of Plaintiffs’ Interrogatories. 3. As of October 31, 1977, there were in licensed facilities in Pennsylvania: 250 juveniles under Section 201 0 juveniles under Section 302 0 juveniles under Section 303 0 juveniles under Section 304 0 juveniles under Section 305 4. The juveniles identified in paragraph three (3) above were admitted/committed to these institutions by persons or agencies as follows: 249 by natural parent O by foster parent Supplemental Answers to Interrogatories 937a 1 by county welfare agency 0 by police 0 by other relatives 0 by Juvenile Court 0 by neighbor 0 by guardian 0 by others Respectfully submitted, (s) Norman J. Watkins Norman J. Watkins Deputy Attorney General Robert B. Hoffman Assistant Attorney General J. Justin Blewitt, Jr. Chief, Civil Litigation Robert P. Kane Attorney General IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] AFFIDAVIT I, Margaret Underkoffler, being duly sworn accord- ing to law, hereby depose and say that: 1. The foregoing answers on behalf of Defendants to Plaintiffs’ In tories are true and correct to the best of my know , information, and belief. (s) Margaret Underkoffler Margaret Underkoffler 938a § Supplemental Answers to Interrogatories Subscribed and Sworn to before me this 19th day of December, 1977. Eva R. Hartman Notary Notary Public My Commission Expires May 13, 1978. (Seal) Certificate of Service AND NOW, this 22nd day of December, 1977, I, Norman J. Watkins, Deputy Attorney General for the Commonwealth of Pennsylvania, counsel for Defendants, hereby certify that on Thursday, December 22, 1977, I served Defendants’ Supplemental Answers to Plaintiffs’ Interrogatories by depositing said document in the United States Mail, postage prepaid, addressed to: David Ferleger, Esquire 2321 Sansom Street Philadelphia, PA 19103 (s) Norman J. Watkins NORMAN J]. WATKINS Deputy Attorney General iid eed aS ot suvesy anstitucauns aS Or uctoper 31, 1977 | 939a os oy s_ {} Mental Health Procedures Act of 1976 MA/HR Act of 1966 Sections Sections Aces 0 = id Acs 15° = 18 Ages 0 = 14 | Aszos 15 = 18 TOTAL 1}201| 302 | 303 }304 |305/| Torar {| 201) 3021303 13041305 TOTAL i} 402] 403| 405] 406 || ‘TOTAL jf 4021 303'405) 406 l PPI LL NA | | | | preville a a = & Re wee: ee orristown o ie { ty stern State School _¥O Iino) | Tei2ll a le i 7 arn ew were erford 20 als . —to— —_— i ladelphia o | : i —— nhurs a ) | g ly? |? Ddhaven | 2 Gq y “ . Bb entown | io | i rks Summ 7 ee a | = view 2 on oe ee ee | ‘ax a8 reat Te ene | } nersville To — i ; bur J bol yi! Le z 27) _ te Haven i ters | 4 sit — = risburg - - ‘et pe | ss days 7s Se EE BO oR ASS oe —— rset O | | ] i} eee bona Center I) i | lao i By! ee sson i 1__} 79 Tayi |; nsbure Jee ORR WETS Lar he jl sy li7 Sti, Sas, OR esa ee | ' yrocccures Aet ¢ 7 L976 “\ 1 Juveniles in Public Institutions as of October 31, 1977 { M/E Act of 196% > ; — : > —_ = > Institutionalized Juveniles Adnitted/Commited by: eis —— ‘ ' . ; iw 7 | ! Co. ) | Juvenile | | Poster | Welfare Other j; Court TOTAL Paronti Parent! Depts. Police: Relative | Official Neighbor | Guardian Other (specify) 176 /66*|1 75 | 66) 76166) 76! 66! 76166176 | 6G176 | Gal7G | GéTie | 66 | 76 i «66 Tiel et I : EPPI it | 2 aN C | = 3 Embreeville Hot! ie. | f Norristown || re ee | Eastern State School {|__| jiael . 7 oa | | tl Haverford | we 119 / ) Philadelphia eR OR OS Ce 26 Pennhurst ciaaiiinns Ih i t— \22 an Yy ‘ | | l Woodhaven PRD | {0 ) am _\2 eT { ®. iy ATTentown keaton Whe Pes, Clarks Summit Sab ta ee Bes Pe L Hind S odheidliieialeuctesaa | | hae RC Sa wee | ernersville - Ly aS 4 a i a BOR we + i I L [ hite Haven ae a 2 (2?! i a }. ia a CI I May L arrisburg {i wh Cee oll idaysburg ee oe a iat) exe | Tcdiercilliencsivanlancaeaialetaed } . Itoona Center Sire . | 7 Oi ] | OE eT oe ee 2 cs oe ae a z, L D " ee | PY ] willie s linsgrove | — 132 j ~-—4 — ar _ 5 ‘Se - ‘ —- Se | — - [a a} 7 TS Gm fe ores : ee | ee ae ae . 1 a ae | 7 | : ae ae ee A eee ee er siete I! | Wart | | | j \ } “/ ttt te te SMa MR Lf ] | = 2 ; } | ] i j i ‘ i" l a ' { | ' | ry 1 | ie are is Ld i = ! 7 ne) ie ee eee eee ee ere ——— |. saps , + ee ee te ele. all UE tee ee ee ,. , ' , . ~ user pee * P — . -_-* 4” . re bOm oon ; i e a ae OR as Le Response to Motion 941a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing ] DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION FOR CLASS ACTION Defendants hereby respond and object to Plaintiffs’ Motion for Class Certification as follows: 1. The factual and legal considerations for children who have been institutionalized at the behest of a public service agency differ significantly from those who are in- stitutionalized by his or her parent(s). Accordingly, it is inappropriate for one group to represent the interests of the other, as has been proposed by the plaintiffs. 2. The case is inappropriate for certification of a defendant class in that the legal and factual considera- tions with respect to directors of state-owned and operat- ed facilities differ significantly from those involved with respect to directors of private licensed facilities. 3. The proposed defendants are not so numerous as to make joinder impractical as required by F.R.C.P. 23. WHEREFORE, defendants respectfully request that the plaintiff class be certified only in accordance with Paragraph 1 above. Further, defendants request tha: the . ans 942a Response to Motion Court refuse to certify a defendant class for the reasons set forth in Paragraphs 2 and 3 above. Respectfully submitted, NORMAN J. WATKINS Deputy Attorney General ROBERT P. HOFFMAN Assistant Attorney General J. JUSTIN BLEWITT, JR. Deputy Attorney General Chief, Civil Litigation ROBERT P. KANE Attorney General Stipulation of Counsel 943a IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA [Caption Omitted in Printing] STIPULATION OF COUNSEL I. Stipulation of Facts The following facts are stipulated to by and between the plaintiffs and the defendants through their counsel, subject to the objections noted at paragraphs 47 and 48 below: 1. In this action, plaintiffs, individually and on be- half of all others similarly situated, seek declaratory and injunctive relief for violations of their civil rights result- ing from the operation of Pennsylvania statutes which permit their indeterminate confinement in institutions for the mentally ill and mentally retarded under color of state law with no right to notice, hearing, counsel and other procedural safeguards. The statutes are challenged on the ground that they conflict with the plaintiffs’ rights under the Due Process Clause of the Fourteenth Amend- ment of the United States Constitution. 2. The defendants are those state officials who ac- cept and receive into custody the named plaintiffs, minors, upon the application of parents or guardians such as wel- fare departments and child care agencies. ie eal Ay 944a Stipulation of Counsel 3. This case has been before the Court as Bartley vy. Kremens, 402 F. Supp. 1039 (E.D. Pa. 1975), vacated and remanded, 96 S.Ct. 1709 (1977). This amended and supplemental complaint substitutes new class repre- sentatives and informs the Court of recent state statutory developments. 4. Jurisdiction is asserted under 28 USC. 1331 which provides for original federal question jurisdiction. The amount [claimed] in controversy, exclusive of inter- ests and costs, exceeds $10,000. 5. Jurisdiction is also asserted under 28 USC. 1343(3) which provides for original jurisdiction in all suits authorized by 42 U.S.C. 1983 to redress the depriva- tion under color of state law of any right, privilege or immunity secured by the Constitution of the United States and by federal law. 6. The federal statutes and rules under which plaintiffs’ claim relief are 28 U.S.C. 2201, 2202, 2281, 2284, Rules 57 and 65 of the Federal Rules of Civil Pro- cedure (all of which relate to declaratory judgments, in- junctions and three-judge courts) and 42 U.S.C. 1983 and 1988 (which relate to civil rights actions) . 7. This is a proper case for determination by a three-judge court pursuant to 28 U.S.C. 2281 and 2284 since the plaintiffs seek an injunction to restrain defend- ants, state officials, from the enforcement, execution and operation of portions of state statutes of state-wide appli- cability on the ground that said statutes are contrary to the United States Constitution. This action was filed prior to the enactment of Public Law 94-381 which amended the three-judge court statutes. Se ae Stipulation of Counsel 945a 8. The named plaintiffs bring this action in their own behalf and, pursuant to Rule 23(a), 23(b) (2) of the Federal Rules of Civil Procedure, on behalf of all others similarly situated. 9. The questions of law and fact involved are: a. Are the representative plaintiff parties, and their class members admitted/committed to mental mae pee pursuant to the challenged statutes and without notice, counsel, hearing and other procedural safeguards? b. Do the defendants operate, execute and en- force the challenged statutes? c. Are the challenged statutes contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution? 10. The named plaintiffs sue by their next friend and guardian ad litem, appointed by the Court pursuant to Rule 17 of the Federal Rules of Civil Procedure. 11. The parties agree that the named plaintiffs may be designated by their actual given names and the initial of their surnames. Their full identities have been made known to the defendants. 12. The first group of plaintiffs, those confined at Haverford State Hospital, under the Mental Health Pro- cedures Act of 1976, are all the juveniles under 14 years of age admitted/committed under Section 201 as of Oc- tober 31, 1977, to that institution. 13. The second group of plaintiffs are persons with mental retardation confined under the Mental Health and Mental Retardation Act of 1966, Sections 402 and tiie cccieiiniaal 946a Stipulation of Counsel 403, in two institutions, one near Philadelphia in the eastern part of Pennsylvania and one near Pittsburgh in the west. First Group of Plaintiffs; Those at Haverford State Hospital 14. Plaintiff Kevin S., born May 2, 1965, is a citi- zen of Pennsylvania. He is 12 years old. 15. Plaintiff Richard S. is now 13 years old and a citizen of Pennsylvania. He was born September 24, 1964. 16. Plaintiff James Paul M. is 7 years old, having been born on November 10, 1969. He is a citizen of Penn- sylvania. 17. Plaintiff Raymond C. was born on September 9, 1964, is a citizen of Pennsylvania, and is 13 years old. 18. Plaintiff William B. was born June 18, 1968, is 9 years old and is a citizen of Pennsylvania. 19. Plaintiff Eddie B. was born October 26, 1965, is a citizen of Pennsylvania, and is 12 years old. 20. Plaintiff Francis B. was born January 9, 1967, is 10 years old and a citizen of Pennsylvania. 21. Maria L., plaintiff in this action, was born Au- gust 26, 1965, is 12 years old and a citizen of Pennsyl- vania. 22. Thomas W., born February 14, 1966, is 11 years old and a citizen of Pennsylvania. Second Group of Plaintiffs; Those at Polk and Pennhurst State School and Hospitals 23. Plaintiff Nancy Louise D., born December 10, 1960, is a 16 year old citizen of Pennsylvania. Stipulation of Counsel 947a 24. Plaintiff Gina S. was born on July 30, 1961, and is a citizen of Pennsylvania. She is 16 years of age. 25. Plaintiff George S. was born February 10, 1963, is 14 years old, and is a citizen of Pennsylvania. Defendants 26. Defendant Secretary of Public Welfare is the Pennsylvania state official who, in that capacity, has the power and duty to enforce the challenged statutes and all regulations necessary and appropriate to the proper ac- complishment of those provisions and “to operate and as- sign functions to all State facilities.” See Sections 201 (2) and 202 (a) of the Mental Health and Mental Retardation Act of 1966, and Section 105 of the Mental Health Pro- cedures Act of 1976 (“Treatment Facilities”), and 6 Pa. Bull. 2115 at Section 7100.1.2 (definition of “approved facility”). Aldo Colautti currently occupies that office; Frank Beal, who was Secretary at the time this action was filed, left office on February 15, 1978. 27. Defendant John Fong is the director of Haver- ford State Hospital and is charged with supervision and administration of the facility. See Sections 102, 203 and 417 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. 4102, 4203 and 4417. It is to Fong or his delegate that applications for admission, commitment or release of the plaintiffs must be made. Under Section 202 of the 1976 Act, application for examination and treat- ment may also be made to the county mental health/men- tal retardation administrator who designates an approved facility for examination and for such treatment as may be appropriate. Haverford State Hospital is an approved facility under Section 105 of the Mental Health Proce- dures Act of 1976. 948a Stipulation of Counsel 28. Defendants Nicholas D’Aluisio a ek — Youngberg are, respectively, directors of School and Hospital and the Pennhurst State School and Hospital, both institutions for persons with mental retarda- tion. They are charged with supervision and administra- tion of those facilities. See Sections 102, 203 and 417 of the Mental Health and Mental Retardation Act of 1966, 50 P.S. 4102, 4203 and 4417. It is to D’Aluisio, Young- berg or their delegates that applications for admission, commitment or release of the plaintiffs must be made. See sections 402(b), 403(b) and 403(c) of the Mental Health and Mental Retardation Act of 1966. Haverford State Hospital 29. Haverford State Hospital is an institution for the mentally ill located in a rural/suburban area outside Philadelphia. 30. The institution’s score of buildings cover a large hilly area in one corner of which is Building 14, a building with two large wards. The west ward houses geriatric patients; the door to it is generally unlocked. The east ward houses juveniles. 31. As of October 31, 1977, there were a total of 12 juveniles in the Children’s Unit in Building 14. Three were committed by juvenile courts, after hearings; 9 were admitted/committed under the challenged statutes, upon application to the institution by parents or guardians. 32. Entry into the Children’s Unit in Building 14 is through a door that is kept locked. When a buzzer is rung, a worker inside comes to unlock the door. The door bears a sign which reads, “VISITING HOURS— 1:30-4:30 Weekends and Holidays. No evening visits. (signed) Dr. Bernard Kanter.” Le Stipulation of Counsel 949a 33. The Unit consists of two hallways which cross at a glass-walled nursing station. One hallway continues from the entrance door to a large dormitory area for male patients. Along that hallway are two carpeted unfurnished rooms used for “seclusion” or “time-out” purposes. The second hall has a large dayroom at one end and, at the other end, a large dormitory area for female patients. 34. (Modified drally) In the nursing station is a bank of television monitors which are used to surveil the patients in all areas of the Unit, including the halls and dormitories. 35. Adjacent to the building are playing areas fenced in by chain link fences about 12 feet high. 36. Dr. Carl Hammer is a part-time psychiatrist in a unit other than the Children’s Unit at Haverford State Hospital. 37. All mental health and mental retardation facili- ties in Pennsylvania which are not state-owned and oper- ated must be licensed and/or approved by the Depart- ment of Public Welfare. As part of the approval/licens- ing, such facilities have been required and are required to utilize and act in conformity with the commitment and admission procedures in both the 1966 Act and the 1976 Act. 38. Since the effective date of the 1976 Act, the regulations adopted by the Department of Public Welfare in 1973 (reproduced at 786a, footnote 5 of the July 24, 1975 Opinion of the District Court) are used by the de- fendants and apply only to juveniles admitted/committed as mentally retarded under Sections 402 and 403 of the 1966 Act. The regulations do not apply to juveniles ad- 950a Stipulation of Counsel mitted/committed as mentally ill under Section 201 of the 1976 Act. 39. Except as may be provided in the 1973 regu- lations referred to above, when institutionalized juveniles object to their confinement or express a desire to leave the institution, as the named plaintiffs have through their guardian ad litem and as some have done personally, the defendants do not provide counsel or take action to as- sure either discharge or a hearing on the juvenile’s objec- tions because the defendants believe, as a matter of law, that they are not required to do so. Il. EVIDENCE 40. The evidence which was admitted in the ini- tial proceeding, including all testimony, depositions, ex- hibits, interrogatories, objections and rulings shall be deemed included in the record in these proceedings. Fur- ther, for the convenience of the parties and the Court, the printed Appendix, which was used in the Supreme Court, No. 75-1064, with permission of this Court shall be used in these proceedings. 41. As used in this stipulation, the following terms have the following meanings and references: a. “Juveniles” mean persons 18 years of age or younger admitted/committed under Sections 402-3 and 405-6 of the Mental Health and Mental Retarda- tion Act of 1966, and those persons under 14 years of age admitted/committed under Sections 201, 302-5 of the Mental Health Procedures Act of 1976. b. “Mental Health and Mental Retardation Act of 1966’, “MH/MR Act of 1966’, “1966 Act” and “‘66” refer to 50 P.S. §4101 et seq. Stipulation of Counsel 95la c. “Mental Health Procedures Act of 1976”, “MHP Act of 1976”, “1976 Act” and “76” refer to 50 P.S. §7101 et seq. d. Sections 201, 302, 303, 304 and 305 refer to the corresponding sections of the 1976 Act. e. Sections 402, 403, 405 and 406 refer to the corresponding sections of the 1966 Act. f. “Licensed mental health facilities” refers to those residential menta’ institutions not operated by the State and which are licensed or approved by the Department of Public Welfare to provide mental health and retardation services. See Section 102, 201, 202 (a), 203 and 417 of the 1966 Act; Section 105 of the 1976 Act (this section applies as well to state operated mental institutions); 6 Pa. Bull. 2115 at Section 7100.1.2 (definition of “approved facility”) . 42. The Defendants’ Answer to Plaintiffs’ Inter- rogatories attached as Exhibit A hereto, and the Defend- ants’ Supplemental Answers to Plaintiffs’ Interrogatories, attached as Exhibit B hereto, indicate the number of per- sons in Pennsylvania admitted/committed under the chal- lenged statutes and the applicants for their admission/ commitment as of October 31, 1977. The information teferred to in paragraphs 42, 43, and 44 is substantially accurate at this date. 43. Exhibit C is a table indicating, for all juveniles in state-owned and operated institutions, the age ranges and statutory provisions under which they were admitted / committed, by institution. 44. Exhibit D is a table indicating all juveniles in state-owned and operated institutions, by institution, and indicating the identity and nature of relationship of the “ve a | 952a Stipulation of Counsel applicant for admission/commitment by various specified categories. 45. Of the 119 juveniles listed in Exhibit A, para- graph 4, as having been admitted/committed by “Juvenile Court”, 114 were committed by the Court under Section 406 and 5 were admitted/committed by the Court under Section 201. 46. Defendarts have not been precluded from offer- ing any additional evidence over and above that which has been offered and admitted or excluded by a specific order of this court. The same is true of plaintiffs. [Further offers of proof may be made at the hearing of this matter. ] Ill. OBJECTIONS 47. Defendants object to the admission of the facts stipulated at paragraphs 29, 30, 32, and 36 above on grounds of relevance and on the basis that they [fail to provide a complete or accurate depiction of Haverford State Hospital. ] 48. Plaintiffs object to the admission of Part A of the Exhibits 1 through 12, described below, on two grounds: first, their relevance because they are preadmis- sion material, and second, that [some portions] of this material [were] not received by the institution until some time after the admission/commitment process was con- cluded. IV. RECORDS OF NAMED PLAINTIFFS 49. Exhibits 1 through 12 which are to be submit- ted into evidence are portions of the official records of the named plaintiffs at their respective institutions, re- ferred to as “the Records Exhibits”’. Stipulation of Counsel 953a 50. Each of the “Records Exhibits” includes a Part A and a Part B. 51. Part A is pre-admission material including such things as background referral material, school and out- patient records. It is specifically noted by the parties that there is no stipulation that all of the material in Part A was received by the institution prior to the completion of the admission process. 52. Part B on Haverford State Hospital patients consists of the institution’s Admission Note. Psychosocial history, psychological evaluation and a New Case Conference note, all developed shortly after admission/commitment. Part B also includes the statu- tory admission/commitment forms. For plaintiffs at Polk and Pennhurst, Part B consists of the reports of various examinations conducted shortly after admission. Part B also includes the statutory admission/commitment forms. 53. The parties will finalize and present to the Court at the March 31, 1978 hearing the contents of Ex- hibits 1 through 12. NORMAN J. WATKINS, ESQUIRE ROBERT B. HOFFMAN, ESQUIRE Department of Justice Capitol Annex Harrisburg, PA 17120 Attorneys for Defendants DAVID FERLEGER, ESQUIRE 2321 Sansom Street Philadelphia, PA 19103 Attorney for Plaintiffs 52 A . ts 3 Ne ' t. qe» ’ S Juveniles in Public Institutions as of October 31, 1977 954a a bes Py a | 3 Mental Health Procedures Act of 1976 MH/MR Act ot 1966 Sections Sections Aces 0 = i4 _| Ages 15° = 18 Ages 0 = 14 i asos 15 = 18 TOTAL 1]201| 302) 303 ]304 [305|| Torar {| 202) 3202] 303 13041305 TOTAL j| 402| 403] 405] 406 || TORAL ff 402! 403 '405) 406 : ee EPPI PNM | | | = Embreeville e._| | = 2 i‘; vi Norristown Root ° | I : Eastern State Sc Oo |iao; | F | 2 i ee Haverford zoo; | | | tet | mee Philadelphia o ee | ; | Pennh ; “ a g_ ye =e Woodhav: Sal roa A || fol i_ 23 _|2%) ! = 2 2a ae | ee Tae ° l Sl — tad ce J te 2 ay | |__ _ = Ire = Danville S oe | = Harrisburg “— {| Tidaysbu “aa | 1 | rset ’ oO | B i} I | Alteona Center T o iBy: sy | Cresson iH Bh 1© Tayi | | Ebensb j_-J jl oye 7s | ¥ , { 43 1 |40 2 | | wt di ! os Boul | Bel a a : s = | i 2] - * L i! 1 _ co lej|o| ° ‘lol e | est + ; IL 4, SS ae alee oer é aij P xs ; | 4 : , me - oe aii mane 9544 : | vrocecures fet ¢ 7 1976 . vuvonsles in Public Institutions as of October 31, 1977 MUMS Act of 19GS = : , — +. + : : =; : Institutionalized Juveniles Admitted/Comited by: Foster |] Welfare Mther ; Court ——----— 4 _—- -—+ Co. ; | Juvenile ce! Relative | Official | Neiahbor | Guardian Other (srecify) 65176 | 66176 | 56176 | 6oli6 * Seat weer oO. 2) CY a. -4 ~) ~ a) ro’ ~) oO a Cc ~ *)) CN Cc. ~“ aToO a ie ia EPPI Embreeville _Norristown Eastern State School Haverford Philadelphia Pennhurst Woodhaven Al | ! ms ! a io, — \— »— 4, 7 -——- a —_—— -__ | a q | ee ee ——ESe 4 | ~ ~ E awe s —— i ened — | rl wy . 4 —— wee | anni aaa qT | te ae) oe q ey Clarks Summit Farview Retreat Wernersville Hamburg White Haven Danville Harrisburg Holl idaysburg Somerset Altoona Center Cresson Ebensbur 1 — 20) Laurel ton | a 7. 7 Selinsgrove _ Dixmont ] | ~-— train ~y the Pennsylvania staff. ae . The Department i i vania uses that PASS nancies witalipianeeninn — a Yes, they do. . Do the i iliti ek teh har - to evaluate facilities for the re- A. Community residential programs, right, yeah. MR. FERLEGER: Mr. Hoffman, we would submit that Linda Glenn is qualified as an expert in the area of mental retardation, care and rehabilita- tion of retardation institutions and community care for the retarded in the United States. Do you have any objections to her qualifications? MR. HOFFMAN: Without admitting all those areas are necessarily relevant to this court case. | would certainl ifi hint | inly agree she qualifies as an expert in Q. (By Mr. Ferleger) Miss Glenn, could you tell us please generally who are the mentally retarded etl 978a Linda L. Glenn—Direct in the United (9) States? What kind of people are they, how many are there, just what kind of people are we talking about? A. The commonly used prevalence rate for how many people are mentally retarded in the United States is about 3 percent. That is, that has been used histori- cally from some incident studies, prevalence studies — years ago and it still has not been challenged. T percent, I guess, of the population of the United States right now would be two or three million people, so ~~ are talking about a very large number of people. T _ 3 percent, however, is made up of a variety of needs 0 individuals and severe levels of retardation. The large bulk within that 3 percent are the more moderately hand- icapped persons. Q. How many is that large bulk? A. Oh, at least 80 to 85 percent of the mentally retarded are more mildly handicapped persons that don’t need a lot of special services. They can live in the com- munity typically without anybody knowing they were mentally retarded unless somehow in some system they = gotten labeled or institutionalized for some reason. Only about 5 percent of the mentally retarded are in the cate- gories of what the professions call severely and profound- ly retarded. . (10) Q. And the remainder are typically called moderately retarded? A. Yeah, moderately retarded. Q. And what proportion, if you know, of the mentally retarded are in institutions? | A. A little under 200,000 people are, I think, in public institutions right now. Linda L. Glenn—Direct 979a Q. Are people of all retardation levels to be found in institutions would be defined moderately retarded? MR. HOFFMAN: Objection. Q. (By Mr. Ferleger) Would we find moderately retarded, mildly retarded people in institutions? MR. HOFFMAN: Objection, the case focuses on Pennsylvania, and in addition, I don’t they we’ve been given any foundation from Miss Glenn’s in- formation on that point. Q. (By Mr. Ferleger) please? A. Yes, there are mildly retarded people in all in- stitutions. Q. Including Pennsylvania, as far as you know? A. As far as I know, yes. Q. What is the procedure that professions use gen- erally for identifying who the retarded are? A. Well, unfortunately, they still—the main test is an IQ test that the professionals use to diagnose some- body as (11) retarded or to talk about what level of re- tardation they are. That, however, is not appropriate. The definition of mental retardation takes into account three different factors, IQ being only a factor that can- not be used alone. IQ has to be looked at in conjunc- tion with the adaptive behavior of an individual as well as what stage in that person’s life did he develop a prob- lem in both the IQ and adaptive behavior. The stan- dard definition used by the American Association on Mental Deficiency is a person would have to have sub- stantial intellectual subnormally as well as impairments in adaptive behavior that originated in the developmental period. Person’s live, in other words, it couldn’t be an Answer the question, 980a Linda L. Glenn—Direct adult that had a car accident at age 20. He wouldn’t be considered mentally retarded because he may have be- come brain damaged. He would be considered a per- son that had been injured. Q. Could you tell us, to help us learn some of these terms, what years that developmental period includes and what adaptive behavior means? A. It is commonly considered the developmental period being birth to approximately age 16. Adaptive behavior is whether or not that person has learned to manipulate his own environment. Can he get along in society, does he (12) know how to care for himself and to socially be accepted in society by his behavior, has he adapted to the demands of his environment. It is very often that a person with a low IQ can get along in so- ciety. You do not have to have a high intellectual quo- tient as measured on standarized tests to be able to live in the community even by yourself, to navigate that com- munity, to be able to hold a job and be self sufficient. Q. Well, isn’t there, as I think many people be- lieve, some relationship between a person’s IQ or level of retardation and whether or they not are found in an institution? A. No, not at all. The people you find in institu- tions now, the reasons range from the parents don’t want to let them come out or inappropriate reasons that they have been put in there. Q. So we would find severely and profoundly re- tarded people living in the community as well as living in institutions? A. You’d have the same people living in institu- tions living in the community, too, exact same people with the same needs and same impairments. It is cir- Linda L. Glenn—Direct 981a cumstantial as to whether or not they have ended up in institutions. Q. Regarding this process of identifying the re- tarded, you said IQ would be an insufficient indication by itself of (153A) the mental retardation. Could you describe whether and how mistakes are made in identify- ing whether someone is mentally retarded? A. Well, there are many mistakes. The most com- mon one historically has stemmed from the fact they have been associated with certain characteristics of individuals who are thought to have mental retardation. For ex- ample, at birth, it used to be if a child was born with a physical characteristic of a Down’s syndrome child, mongoloidism, which can be noted at birth, the person has been assumed by many pediatricians and other pro- fessionals as automatically meaning mental retardation. That’s been found not to be true. The fact that people have not had experience with individuals that have been allowed to live in the community that have Down’s syndrome, that are allowed to have developmental pro- grams and meet their needs, they hadn’t seen that it is not necessary that Down’s syndrome people are mentally retarded. They have to be given that opportunity. Q. What other kinds of mistakes are made and how? A. A lot of other handicapping conditions can cause the person to test on tests lower than their in- tellectual capability. Deafness is a good example. They have evaluated a lot of people on standardized tests and (13) thought they were severely mentally retarded and found out years later the problem was deafness. Other problems are physical handicaps. Some peo- ple are born with multiple physical involvements that 982a Linda L. Glenn—Direct don’t allow them to have normal motor movement, nor- mal speech patterns, normal capability to communicate and since they haven’t been able to communicate or to walk like other kids or behave like other kids physically, they have been labeled as mentally retarded. Q. If I recall correctly, as reasons for mistakes or errors in identification of the retarded, we have inap- propriate use of IQ tests without consideration of other factors, which define mental retardation, physical prob- lems such as deafness or other physical handicaps, as- sumptions that are made about somebody at birth or some early point— A. Developmental speculations that are wrong. Q. Have we generally covered that area? A. Well, treating it that way makes it sound like IQ is a static indicator. That’s a basic problem. A per- son may test low both on adaptive behavior and IQ and unfortunately is placed into an institution or some other non-developing-type atmosphere and he doesn’t grow. But if he is placed in a facility that has (14) appropriate programs and typically kept in the community, then he grows every year. You can’t say because he is diagnosed this year as mentally retarded, then he will be the same next year and the year after. That’s a dynamic type of diagnosis. MR. HOFFMAN: _I’d like to interject for a second. I’d like to place a general objection on the record, that I think most of this testimony seems rather far afield from what I understood the Court asked the scope of this inquiry to be, which was that the mentally retarded and the mentally ill raise sim- ilar questions with respect to admission procedures to residential facilities. Linda L. Glenn—Direct 983a MR. FERLEGER: That's right, the purpose of this obviously is to inform the court as to what men- tally retarded are, who they are, where they are, in order for the court to determine whether or not there are differences, when that would require differential treatment. Q. (By Mr. Ferleger) So le Ww being mentally retarded in some peg Pea a a A. Oh, in many cases, sure. Q. And what many of us learned or absorbed as young people growing up, that someone who is mentally retarded has a (15) a mental age of a six-year old, is just going to be that way for their entire lives, is that a correct assumption or incorrect? A. That’s correct. In the past ten years in the field, we have learned that even people that have been diagnosed as serverely, profoundly mentally retarded, multiply handicapped in the past they have put them in institutions and haven’t been given opportunities to grow. They laid in bed and looked at the white ceiling. Q. I’m not sure if you misspoke or not, but it is not correct those people will remain the same? A. If they are only given the opportunity to lay in bed and look at the white ceiling with no stimulation and no experiences, they will probably remain at that level of capability. But we have learned, giving them developmental opportunities in a normal, active environ- ment, that many of the people are not mentally retarded, even those that we have thought were profoundly retarded. Bc MR. HOFFMAN: §I’d like to make another ob- jection to any of Miss Glenn’s general comments, particularly on the quality of institutions and on in- stitutions, on two grounds. First, that I think the 4 984a Linda L. Glenn—Direct Court has ruled that the general conditions to be irrelevant and that Miss Glenn (16) is speaking generally, not in reference to Pennsylvania. That would seem to be irrelevant to this inquiry. Q. (By Mr. Ferleger) Miss Glenn, so the record will be clear, if we come to any point at which your dis- cussion on the mentally retarded somehow does not ap- ply to mentally retarded people who happen to be in Pennsylvania, would could let us know? A. Yes, I will. Q. Thank you. In terms of where the retarded are, could you tell us, if you know, what proportion of the retarded can be found in institutions and what proportion in community programs? A. Nationally, only about 10 percent of the men- tally retarded are in institutions. The remainder are in the communities. Q. We have been using the term institution and community for awhile, I expect we will be for the rest of this deposition. Could you give us a working defini- tion of those terms? A. The statistic should clarify that I gave you, was talking about public operated institutions, so I don’t want that to be confused with my definition of institutions. That’s one type of institution, but the best definition of (17) institution that I’ve seen used and I use myself that an institution is any residential facility which is larger than a iarge family would be and exerts more controls over the individual than a large family would exert. The communities would be those—well, the larger en- vironment surrounding those places that don’t exert con- trols, that are normative, environments, either the per- Linda L. Glenn—Direct 985a son living in his own home or the person living in small residential facilities in foster homes and different types of specialized, but small, dispersed programs that are normative, normal houses, attending day programs away from their places of residence, being able to utilize com- munity recreation, community social programs, where the life of the individual, the pattern of life and the rhythm of life is typical as it is for a person that is non- retarded. That would be the community definition. Q. And those community facilities exist in, would you say all or most of the states in the United States? ) A. There are community programs in every state in the United States, yes. Q. And I take it from your earlier testimony you've seen at least some of these in Pennsylvania? A. Quite a few in Pennsylvania, yes. Q. With regard to institutions, could you describe for us, (18) please, the general nature of life in institu- tions and the dangers of life in those institutions, paying special attention to the adhered declaration of liberty that is involved in institutions? MR. HOFFMAN: Objection relevant to the last qualifying phrase of Mr. Ferleger’s question. THE WITNESS: Well, institutions are in- herently inwardly oriented and self-contained, which makes it even more difficult to return people to the community or have people learn normative ways of life because it takes away all the experiences from an individual that any other person would receive by either growing up in his own home or being pro- ‘vided a service in the same community or with other people that are in the community that are non- handicapped. What an institution does, unfortunate- ~ Beep eke ee 986a Linda L. Glenn—Direct ly, is take each individual and instead of really looking at which areas of that person’s life, there are really four spheres in anybody’s life, and deciding which areas that person needs assistance in or train- ing in or even some cases protection in, it auto- matically protects all four areas of the individual’s life and over-protects in the sense of not letting him learn the normative experiences in other aspects. It shelters the home or residential area of a person’s life, (19) the developmental area of a person’s life, whether it be education or training or vocational types of opportunities, the whole learning experience, it goes on for a person to have recreation activities in the community, and other social activities, using banks, learning how to shop in the community, learning how to just navigate the types of recreational and social opportunities as other people. The institution by sheltering all four areas, doesn’t allow individualization. Some people may need assistance in their training program. They may not be able to work by themselves, now, in competitive employments; because that’s true, that’s no reason to shelter him in his residential area, in his recreational opportunities and experiences, or any other sociai type of opportunities. It is—the same thing goes for people that—some people do not even need assistance in living by themselves or living in a supervised setting, but he also may be able to work in a normative type of setting attending normal community activities and recreation and so- cial, but an institution extracts, takes away liberties and opportunities in all areas once a person is placed there. Linda L. Glenn—Direct 987a Q. Finish. (20) A. There is really a whole lot and I have problems that institutions per se create. I could go through those. Some of the ones, the most important to anybody’s growth, an institution automatically takes away by the fact of institutionalization. I could cover those. Q. Please. A. There are really two major growth dimensions or things that are important to anybody’s growth, whether you are retarded or not. One of those things is model. Most young children and all the way up through your developmental period as well as in adulthood learn, not only from your program or what type of intensity of treatment you are given but you learn from peers. You learn by being associated wi’ groups of other peo- ple in all types of experiences throughout your life. Un- fortunately, what happens in an institution, is once a person has been committed to an institution or goes to an institution, all experiences by other peers that are non- handicapped are taken away. So you have a child in an institution that his only other models to learn from are other retarded kids or other handicapped kids. So what happens is the kid learns handicapped behavior instead of normal type of behavior. You can see this when you first send normal kids to regular pre-schools or first grade. They (21) all of a sudden start picking up be- havior from other kids that the parents have never seen before. This happens in institutions, and you end up with a lot of maladapted behaviors, lots of stereotype behaviors, inappropriate social behavior, that he has picked up because he is around other people with similar problems or worse problems. You have common in- 988a Linda L. Glenn—Direct stances where a child will have a certain problem, and maybe ihe place, like head banging or some other be- havioral problem and the facility may be able to work on that particular problem; but because he associates only with other handicapped people, with similar other prob- lems, he replaces that behavior with worse problems or with different problems but just as bad. He may lose his head banging but pick up biting or because of the depravation in the environment in institutions, a lot of individual stereotype behavior, you'll see kids Tocking, you'll see kids spinning around or playing with their hands in front of their face all the time. That’s institu- tional type of behavior so the modeling phenomena is most important. radian this the programs both physically and socially for handicapped and mentally retarded kids have to be integrated into the community where the (22) Op- portunities for learning with peers and from peers is en- hanced and not extracted from that person’s environment. The social opportunities, the experiences, you cannot ex- pect a child to learn to live in the community or to be- have and respond as others learn to do as they grow up if you have extracted all those experiences from you. Q. Goon. A. It could be a long one, if you want a whole answer. The other largest reason for growth of anybody, not just retarded people, is the power of expectations on the individual and the power of an experience growth which is dictated by how many developmental chal- lenges and opportunities the person is given. A person’s growth is dictated by these challenges and the fact that he constantly has the opportunity to learn new things can be expected to do new things, he may fail some, Linda L. Glenn—Direct 989a but that’s a learning opportunity, too. What institutions have done is take away not only the developmental op- portunities and experiences, but created an environment where the expectation level on the staff that work with a person is very, very low. They know he is handicapped. They know he is mentally retarded as soon as he enters the facility, so they (23) don’t expect him to act normal, so all of a sudden he doesn’t act normal. He acts dif- ferent from normal people. That reinforces the fact that they knew that he was different so they continually treat him differently. Sort of a feedback loop of role expecta- tion. There are other problems with the facilities being too protective that cut down on developmental growth challenges for the person. The problems, when you have large numbers that you cannot individualize, every per- son learns differently, every person learns at a different rate, every person needs different types of emotional, social, as well as educational opportunities. When you treat people in masses, there is a tendency, and there is a lot of research to show this is common, to have a very dehumanizing environment by treating people, everyone alike, sort of like the fortification in the Armed Forces where everybody was treated, upon entrance into the Service, exactly alike same haircut, same clothes, the way they have to line up, then, that happens in the institu- tion. Q. So, for example, Irving Goffman’s book, The Silence, would apply to mental retardation facilities as well as mental health facilities? A. Definitely; in fact, it has a more overpowering effect (24) on a mentally retarded person because the person has not in some cases learned to fend off some ps pare 990a Linda L. Glenn—Direct of the problems in the institution and the a tion features for himself whereas a person in a “eee health facility or corrections facility may have learn that. It also has a much more powerfu] effect to in- stitutionalize a mentally retarded person because it has been an indefinite placement and there is a long history of institutionalization by the majority of people — get placed in an institution for 20, 30 years before they have the opportunity for something else. So you are talking about a powerful, long-term effect on the in- dividual’s life. MR. HOFFMAN: Continuing objection to all the previous testimony and, I guess, what will come as being outside of the deposition requested by the court. MR. FERLEGER: Don’t object to what is to come. You haven’t even heard it. Q. (By Mr. Ferleger) Miss Glenn, could you de- scribe whatever stigma or lingering discrimination and post-institutional life there is for the retarded person who is or has been in an institution? MR. HOFFMAN: Objection, relevance. (25) THE WITNESS: There is tremendous stigma for having been institutionalized. The image in a normal person’s mind of a person who has been institutionalized is one of very aberrant behavior, of dangerousness. It is not one of some- body in need of just care or training, which some professionals think is the institutions’ purpose. But the image is someone of a person that had to be put away to protect the community or to protect himself. Linda L. Glenn—Direct 991a Some one—it is also—the very self image of the mentally retarded person is hurt by that. The fact of the stigma really hurts the person’s later integra- tion into the community. Anybody who knows he was institutionalized fears his behavior, fears that something is going to happen to their children in the community or they are going to get robbed or some other problem just by the fact of institutionalization. The discrimination that is placed on these peo- ple is quite traumatic. Q. Hypothetically, if we had two retarded in- dividuals, both of whom were at the same level of re- tardation and had the same physical handicaps and ex- periences, if one of them had been in an institution earlier in his or her life and the other one had not, could you (26) evaluate for us their chances of participation in community life, in work or in other areas? MR. HOFFMAN: Objection, relevancy. THE WITNESS: Certainly. One whole area, in answering that question, would be that within the institution the person would not have learned normal culturally appropriate and age appropriate dress, social behavior, how to relate to people, how to relate to the opposite sex, he would have prob- lems in dealing with other people. He would stand Out in a crowd. He might even talk louder because he has had to get used to screaming over the noise of others. He would be pointed out in a crowd and avoided because of the inappropriateness of his be- havior, not allowed to participate in certain activities, 992a Linda L. Glenn—Direct not allowed in many cases to be in competitive em- ployment because of this type of behavior that he both learned in the institution and never learned to develop appropriate because he was in the institu- tion, in the community. The other would be more of a discrimination placed—the fear I was talking about, not wanting a person that used to be in an institution to be em- ployed in a certain place because of fears of his be- havior or certain acts of his would be either disrup- tive or stealing (27) or criminal or something. Q. How realistic are those fears? Are the re- tarded generally a dangerous class of people? A. Oh, no, that has been an old myth where peo- ple have not understood the difference between other types of people considered deviants, criminals, some peo- ple that are severely, emotionally disturbed, acting-up be- havior. Mental retardation is a slow person. Now, some of the behaviors that are learned within institutions sometimes are a problem, some of the stereo- type behaviors that I mentioned, because of lack of ac- tivity, there is some aggressive behavior to get attention. There are some people with self-abusive behavior that’s developed. But the fact of mental retardation only con- notes a slowness in the learning process. Q. Not a predisposition to dangerous behavior? A. No, not at all. Q. I hope we can get your assistance on qualifying something that I think is rather important. In your description for the last few moments of what institu- tionalization does to people and the effects on people, are you just talking about public institutions for the re- tarded or are you talking about institutions, the broader Linda L. Glenn—Direct 993a (28) definition that you gave us earlier? In other words, the effects that you are talking about to be found in both public institutions and, let’s say, the large private institu- tions where many families pay a lot of money to— A. Definitely. Q. Which way? A. That the effect of institutionalization is the same whether public or private, if in an institution. There are varying effects mainly based on size. If you get down to a ten-bed institution, typically the research has shown that the powerful effects of the institution are not as great as a hundred-bed institution. But when you get larger than, you know, ten, 12, 15, 20, the same power. ful effects of very large institutions apply to smaller in- stitutions, too. Q. So, for example, are you familiar with the Deveraud Foundation that runs some residential institu- tions?, A. I know them by—I haven’t evaluated the pro- grams, but I know of them, yes. Q. From what you know of those facilities, would they fit into your general classification of institutions? A. Yes. Q. Would you tell us briefly, historically, how did these (29) institutions come to develop for the retarded? MR. HOFFMAN: Objection, relevance, out- side the scope of the deposition. THE WITNESS: Why we have institutions, why institutions originally developed and why we have them today is very interesting because they developed only in response to an archaic perception of the mentally retarded. It used to be in society that the mentally retarded were perceived as non- 994a Linda L. Glenn—Direct developing organisms, people that had no potential at all to develop. We have learned in the past 10, 20 years that this is not true. Persons that have mental retardation have just as much capability of developing as anybody else and on a continuous basis to develop, so that old reason for having institu- tions at all was knocked out years ago. Other perceptions were that mentally retarded persons, just because of mental retardation, were dangerous to society, were a menace, needed protection for their own sake, as well as to protect society. That perception also has been just torn apart and proven time and time again over the past 10, 20 years, not to be true. Thus, there really is no continuing rea- son for institutionalization because we have learned that mentally retarded people not only do not fit these old role (30) perceptions at all with our new learnings, and we found that the research shows that their development and growth capability is much enhanced if they are never institutionalized and cer- tainly hurt when institutionalized. Q. Perhaps you could just summarize in a sentence Or two why it is that, as your testimony has indicated, it is your expert opinion that institutional care is not preferred and that community care for the retarded is the option that ought to be chosen? MR. HOFFMAN: Objection, relevance? THE WITNESS: The goal any social agency is going to have for an individual they take into their care is the training and habilitation of that person to allow him to take on as much independence as pos- sible for that person, to learn to live in the com- Linda L. Glenn—Direct 995a munity as independently as possible, even though though some people will need some level of super- vision, that goal cannot be achieved in institutions. You cannot learn to live and to manipulate in your environment by living in an institution. It is just totally the opposite. You don’t learn how to use the normal things anybody else does, stores, banks, you don’t learn how to cross the street. When you get out in the community, you may get injured trying to cross the street. You (31) cannot learn those basic goals that we would have for independence when you are totally segregated and apart from the rest of society. Q. Could you list for us the reasons that despite knowledge which has been in existence for many years on the nature of institutional care, why institutions seem to be hanging on in our society? A. Oh, there are many, many reasons. MR. HOFFMAN: Objection, relevance again. THE WITNESS: They range from people, even professionals, being ill informed about the ap- propriateness of certain types of services and the effects of certain types of services on individuals. You still have some pediatricians who do not get training at all in mental retardation advising par- ents that their child should be institutionalized be- cause they don’t realize that we have come so far in this field, that the developmental potential and the expectations on a person can be so much greater than just needing custodial care. You have still the at- titude of some people that people that are different in a whole variety of ways should still be put out of 996a Linda L. Glenn—Direct sight, out of mind; so that society will not have to bother with people that are different, you have a system that has developed institutions (32) across this country that have developed a large power base. You have staff that work in institutions that have their own egos involved, that only they can do the right thing and that they are—well, in fact, they’re perpetuating themselves because they feel they are doing the right thing, they, too, being ill informed. Typically a lot of old guards that still hang on to the old beliefs about segregating the handicapped, you have power bases having been de- veloped through the history of institutions and bu- reaucracies by unions and civil services and others that the main purpose is to protect the jobs. So we have not been able to faze out many institutions because of these types of external demands. The fact that institutions have been in some states, almost all states, in the past and in some states still today, the major state funded program, you have a situation where they look more secure where par- ents can trust that the state will fund that institu- tion every year, thus they want that security for their son or daughter, even if they admit it is not the most appropriate placement. They don’t know if they had the person live in the community in some other type of program or by himself that the state will take care of him if they die. So it looks like a (33) more secure thing because you can see the big monument on the hill with the smokestack and water tower and you know it will always be there. So it has been a security thing for some people. Linda L. Glenn—Direct 997a Q. Could you tell us please what variables are in- volved in—where it is that a retarded person receives care or habilitation? Is it the level of retardation?- Are there a factors involved? And if so, what are they? . Well, there are many reasons why a service. On the one hand— ar era Q. Maybe I should bring that up. Fi is i level of retardation? : 1 AEN Pr tha A. Notat all, no. Q. Aren’t there some people who are so retarded that by the very nature of their retardation that they ought to be in an institution out of the question? A. No, none. There are three global areas of why a person would need any type of out of home type of placement, to be out of his own home, and there are a lot of sub reasons within each. Q. Why don’t we cover them one at a time. : A. Okay. Let me list the three, then I’ll go into If. _These three reasons are typically a problem in the family, the family, for any number of reasons. And I (34) enumerate those, as having a problem. They can- not keep the child in the home, or there is a death in the family. There is too many other kids in the family and since this one has a label, the retarded kid has a label. There’s the kid that has a place to go, there is no family, some are abandoned kids, kids that belong to social ser- vice agencies like Welfare because they have been _ e- moved from the home because of abuse. So a problem in the family that has nothing to do whatsoever with the child’s clinical or educational needs is one whole category. _ The second category would be a problem with the individual, mentally retarded person himself. This is the 998a Linda L. Glenn—Direct most minor area. A problem like that may be something like the child has developed extreme behavior problems or is extremely hyperactive and maybe sleeps only two hours a night and bounces off the walls the rest of the time. That builds up such a stress in the family, inability to keep that child in the home without assistance, and when there are no resources to give that family assistance, then that person may need out of home type of service. The third major area are things in the community. The community or, let’s say, the surrounding neighbor- hood (35) of a person that’s mentally retarded living at home, may not like certain of the differentnesses of that person, which may be just his looks, it may be some social behavior. A lot of pressure from a community causes a family to have to make a decision, either move from that community or have the child live somewhere else because of pressure from that community. Q. Considering these factors that you’re mentioned, the communities, individual, the family, and dynamics among those factors, do factual conflicts or disputes arise, and if.so, could you give us some examples? A. Quite a few factual, in several broad categories, conflicts come about all the time. A lot of these are be- tween the individual or the family and the community. For example, there are a lot of cases where a community will pressure a family or social agency to institutionalize, say a young adult retarded person because they say he is creating problems in the community. When you really take a look at the situation, you typically find that what has happened is the individual can have lesser capability than some of his peers of that age, let’s say, a 25-year old man. He will still be in the developmental stages of someone that may be is 13, 14 years old or ten or 12, Linda L. Glenn—Direct 999a and he may have enjoyed doing those types of activities and (36) maybe doing it with other ten-or 12-year old neighbors in the community. The community gets very upset, that they think this young man, all he wants to do is pley, is molesting their sors and daughters that are younger than him in the community. Q. That may be a perception— A. It is an inappropriate perception. Q. Appropriate or—by inappropriate, you mean in error? A. Yes, in error, definitely. Those thin , come out, though. Just the pressure builds _ “the family from a lot of different directions and they think it is best for everybody to have the person institution- alized. Q. Since we’re focusing on juveni also be true of people 18 and ais Sg nance wage A. Certainly. Q. Those kinds of factual— A. Certainly. Parents of normal kids that have not had exposure to mentally retarded people really get upset when somebody different is—even of peer age—is playing with their children in the community or if they are acting a slight bit different. They don’t want their a es with that person. Typically, there real problem at all. i ply It is an understanding of the . (37) Q. would it be correct to say that factual disputes can arise in all the various contexts you described regarding the communities, the individual. the family factors, for institutionalization? A. Oh, certainly. Definitely. There are a lot of —it is hardly ever a problem in the individual or with | TS ty . %: zs = > 1000a Linda L. Glenn—Direct the individual that creates the situation for institutional- ization. I mean, it is a whole range of things involving stress on the family for any number of reasons in many instances that doesn’t even involve the retarded person. the stigma on the family because of historic problems of acceptance of differentness by other people. You have a value conflict there of the parents being ashamed that they have a retarded person in the family versus the re- tarded person or having any needs. Sometimes families can’t afford the care of a person that has minor, more special needs than the normal kids in the family, or there are no resources to help that moth- er learn to deal with the social agency that they have to deal with to get other services for the retarded person. The level of expectation, the doctors that first diagnosed the kid, told the parents that he would never grow. It is a low level of expectation out of ignorance on pro- fessionals’ part. (38) Sometimes where a person lives, there are no services so they feel they have to send their son to the next largest town a hundred miles away to receive ser- vices. Q. Well, coming from what you are describing, I’d like to ask you, Miss Glenn, whether you have an opin- ion on whether or not parents should be depended upon to make the decision on whether or not their child should be in a menial institution? So the record will be clear, when I say child, when we speak about juveniles, we are speaking of people 18 and under. MR. FERLEGER: Off the record. (An off-the-record discussion was held.) (A brief recess was taken at this point.) Linda L. Gienn—Direct 1001a ra : (By Mr. Ferleger) And also of people who are A. Okay. (The last question was read back.) THE WITNESS: From my experience and from—the literature is quite extensive on problems parents have when they have a mentally retarded child. I certainly would say parents should be in- volved in the process of decision. making but cer- tainly not the person that makes the decision. (39) The literature, most of it, really talks about when a person, a family, a parent learns that they have a retarded child, either at birth or at any time during that child’s life, they learn the person is retarded. And then what they have to deal with in the sense of their own emotional state as well as the stress in caring for somebody that needs ex- tra attention, as well as the stigma that goes along with society’s acceptance of retarded people, that they emotionally should not be the ones to make a decision. They go through various Stages of what professionals call novelty shock, where they have expected a child to be normal, who they planned to go to college, planned on him being a doctor or maybe a lawyer, and all of a sudden, their expecta- tions are shattered about what their child is going to be able to do. And there is a greater emotional stress which often results in them not wanting to deal with it, and not having any support to deal with it, so that rejection of the child starts and in- appropriate and certainly unneeded institutionaliza- tion results from that. i ii A tig to as hi its dy Tad ace, cree ade a hr? ee ron y a 1002a Linda L. Glenn—Direct The value conflict is another one. There is a lot of literature on where because society doesn’t accept a person, the family really does not want to deal with them being a different family in the com- munity, and (40) rejecting the child for that rea- son. These first two, however, are things that, with support in the communities, parents get over. But unfortunately, the typical response to these—get over very quickly—but the typical response has been to not deal with that and institutionalize the child. Then there are problems with reality stress situations of value to deal with the child that is dif- ferent, But even aside from those emotional dif- ficulties that parents are constantly going through with pressures from other people in the community, pressures from relatives, you know, not to say they have a retarded person in the family, not having the —being able to have the same type of expectations on the child and inappropriate idea often called by professionals that the child will never grow or never be able to talk or never walk. Q. It is your testimony that you have heard of actual cases in literature, documents, cases where pres- sures like you mentioned from family members, not to admit that there is a child in the family retarded, have resulted in institutionalization? A. Certainly. Q. And where the novelty shock, the value con- flict, the (41) reality stress as you have described, those have resulted in institutionalization? A. That’s been one of the main reasons for institu- tions. There are others, more concrete types of reasons Linda L. Glenn—Direct 1003a that, again, hardly any of them relate to the needs of the individual child. Conflicts between parents, conflicts be- cause of the guilt of what is appropriate for the person or conflicts in their capability to cope—any child is hard to raise for a family and for a family that hasn’t raised children and there is a lot of projection to a handicapped child that he is creating the stress problems in the chil- dren. If they are created by other reasons, other prob- lems, financial problems in the family, it is often projected on to a handicapped person. It is a stress laden time for parents to try to insure they are receiving the right services and they are often at the end of their rope and think that maybe if the child is out of the home in what are typically named schools for the mentally retarded, they think maybe they will get the education there. I have a retarded brother and my parents thought at one time because they could not get a good educational program in one community that because the institution in that state’s name was blank school for the (42) men- tally retarded, if they sent my brother there, he would get an education. It was out of ignorance. They con- sidered it, which they didn’t do, but— Q. To what extent does the ignorance of alter- natives, including community care, make parents less reliable to be the decision makers on the institutionaliza- tion of their children? A. I was going to talk about that. Because of the wide range of community services that have developed over the past few years for the mentally retarded, even in Pennsylvania, there is a very wide range of community services. But they are relatively new in the past six or seven years—most people only know of the services of institutions, because they have had hundreds of years of 10042 Linda L. Glenn—Direct existence. They are the ones that are the most visible physically in the communities because they are large— not in the communities, in the country usually, large facilities. They have been run by™“he state and if they approach a state for services, that’s often the only one they know about, the professionals they go to often don’t know of the range of alternatives and recommend institu- tionalization, unless the— Let me back up. Most parents don’t have even the knowledge of the right professional to go to. Most (43) parents find out from their families that the child is retarded or find out from a schooi psychologist, once the child enters school. And they have not noted any developmental lags in childhood. Those two profes- sionals, or almost any professionals, unless associated with the service agencies that provide the range of alter- natives, only know of institutionalization. The pediatrician may not have had any even educa- tion in the medical school year. That’s just starting as a part of a physician’s training. He’s just learning about mental retardation. That doesn’t even include alterna- tives to institutionalization, so the recommendation to the parents from those most trusted, like a family physician, is often a choice based by someone that is ignorant to the alternatives to that. Q. Can’t parents, when they are speaking with— they are reporting to doctors, psychologist, and other service agencies, about their retarded child, can the par- ents objectively report the behavior of their child or the condition of their child when the issue is institutional- ization? MR. HOFFMAN: Objection, outside the scope of this deposition. Linda L. Glenn—Direct 1005a THE WITNESS: Not always. And the rea- son for that (44) is more of a—a family is not going to, in the vast majority of cases, even have the thought of institutionalizing their child until they have reached a point of high stress of either not be- ing able to get other services or stress in the family conditions, in the home, that have them seek institu- tionalization. At that point in time, it is high crisis time for a family, high guilt time, where there is much guilt in the decision making process. And a lot of that gets projected on to their descriptions of the child’s behavior or the problems that they have had and they think they won’t get any service un- less they really exaggerate that this person is a tremendous monster or they won’t be able to carry through with the decision that they finally made to seek institutionalization. So there’s a definite problem for that reason. The other problem is that parents typically do not have automatically certain behavioral intervention types of schools, and a parent may have thought they have tried everything to work with the child with a specific problem, but with just a little advice and consultation from somebody with behavioral intervention type of techniques, that that problem could have been resolved of or diminished. So that the alternatives to the parent (45) ever needing to apply for institutionalization have not been exhausted in most cases. Q. Another alternative for the gate keeper, deci- sion maker function, regarding the institutionalization of retarded juveniles, would be the institutional staff or pos- Petes 1006a Linda L. Glenn—Direct sibly various community mental retardation agencies or other referral agencies. You may want to separate those two, but could you tell us your opinion as to whether those institutions and/or community referral agencies should be relied upon to make the decision? MR. HOFFMAN: Objection, again, outside the scope of this deposition. I’m just making my continuing objection. The whole issue in this case is who decides. If we can’t get an opinion from this expert on why we can’t trust parents to decide or why we can’t trust institu- tions to decide or community agencies, then we probably should have been dismissed back when you filed your motion to dismiss a few years ago. I understood the issue that you could have raised all of this testimony before the Court prior to our hearing on March 31st, but chose not to and in- stead, I understood that the Court has asked for or permitted an additional deposition solely on the is- sue of whether the (46) same considerations apply to the mentally retarded as to the mentally ill. I think that should be the scope of this deposition, as I have indicated in objections. I think we have gone far afield from that scope. “MR. FERLEGER: Not at all. The same con- siderations that were discussed by four of my ex- perts and four of your experts in the initial proceed- ing are the very considerations that I’m asking Miss Glenn to give us her opinion on as they apply to the mentally retarded. We already have opinions from experts on how they apply to the mentally iil. We're Linda L. Glenn—Direct 1007a now getting an opinion on ho tarded. w they apply to the re- pie i A Bg Mr. Ferleger) Could you answer the ques- A. First, there is a basic conflict i somebody in the institution to make a ae ae whether Or not a person ought to go to that institution Tuat would be sort of like a store owner deciding whether Or not a customer ought to come into his store Or some- body else’s store. Institutions, as | indicated earlier, are sort of fighting to prove their necessity and justify their existence. All the research in the past 35 years has shown that institutions are not appropriate for the de- velopmental growth of mentally retarded persons, but there are a lot of people that continue to try to justif (47) their existence and the only way they can do hee is by having a population. With the move Federally and by states and professions that recognize the inadequac of this historic institutionalization having a yaa _— _— deinstitutionalization, there is a real con- ict where institutions should Stites nese have to have people to prove they Another reason is the institutions, in jori of cases, if not all the cases, would be odin re other alternatives to someone being placed in their in- stitution. Their responsibilities, obviously, would be the operation of that particular program. Also, the staffs of institutions b y the very fact they work there, think that they are doing the hd ties think that they are the best place for people, and so every- body gets ego involved in what they are doing and have been doi , doing for years and think only they can do the right 1008a Linda L. Glenn—Direct Thus, an institution staff making a decision would naturally have a tendency toward saying people belong right there in their institutions. There is also the issue of institutional staff having a mentality of over-protectiveness, really feeling (48) a person has to be brought into the institution and serviced by their staff and protected in that type of environment or the staffs wouldn’t necessarily work there. Q. Would it be your testimony that these phe- nomena would occur regardless of the goodwill or good faith of the institutional staff? A. Yes, definitely. Q. So the influence of the conflict of interest, the ignorance of alternatives, the ego involvement, in your experience, would affect and has affected decisions on admission of particular children to institutions for the re- tarded? A. Definitely, even here in my own state, where our policy is to get everybody out of institutions and where I’ve attempted to hire superintendents that have the same ideology, but it is very hard to find people that want to be superintendents of institutions now because they know it is a dead end street and you cannot get neces- sarily highly qualified people. I have succeeded in getting these people, but, a change over time, where our policy is to get people out and superintendents start sneaking people in, to make sure they can get the same amount of money next year, same census on the (49) roles, it is a justification of your existence, I guess, type of behavior. Q. You answered my question with regard to ihe institutional sphere. Linda L. Glenn—Direct 1009a Now, can you tell us your Opinion as to whether or not the recommendations of community mental retardation agencies or other social agencies or the reports of a doc- tor or psychologist ought to be accepted a sot institutionalize a juvenile? P S a decision to A. I think I covered the doct ae a little bit before. octor, psychologist issue Typically, number one, mental retardation is not a medical problem and physicians are not trained in either mental retardation as a rule or service delivery. They are interested in medical aspects or the symptomology or the syndromes that are associated with the mentally retarded, so the service delivery needs of a person, are not their bailiwick. Psychologists—well, there is a whole range of professionals that do work with community programs and different types of social agencies. I'll talk about social agencies, psychologists to social workers to edu- cators, they, again, don’t know all the alternatives, (50) have only had experience as an individual professional with certain types of services, maybe associated with cer- tain types and have their own ego investment in those types of services. The major reasons, you could not rely on those so- cial service agencies is more one of the pressures on those agencies and the fact that those agencies, the large case loads in almost all cases, the attempt is to find as rapid a placement as you can so you don’t have to deal with that person on a 24-hour basis because of the problem try to find somebody else to be responsible for that per- son in a quick way, administratively. They use institu- tional placement as a cop-out for the sometimes difficult job of getting through the red tape of getting an alter- 1010a Linda L. Glenn—Direct native placement or developing an alternative ee. Many social agencies are resource-bound in the sense 0 what they are able to pay for and often institutions are free because they are publicly operated. Q. They may recommend an institution even — they may be aware that some other alternative wou appro priate? baie That often happens. Because either the = thing available, the only thing they mgt on or t 7 don’t have (51) time to deal with the individua a of the person’s needs such as to match together a lo be resources to make sure it is individually appropriate fo the person. - Dr. Michael Ingall testified earlier in this case for the mentally ill children that og om _— may over-recommend institutionalization. I ta ei _ what you said that that happens in the retardation 9 : = Oh, very often, yes. There is often, om = of our universities are still not putting out — that have the appropriate ideology about the more sev on and profoundly retarded; most of the universities = br training special education teachers to work only Me bar that are moderately, mildly retarded, can sit nicely in = classrooms of ten or 12, don’t have more severe Pp "4 lems. So even though they can classify them ' ap . fessional in the field of mental retardation, they ave ben had the experience to see the dramatic rye gro 4 of a person if he is left in a community. So t eir reco mendation, out of ignorance, would be an institution. Q. Miss Glenn, I know that since I first contacted you about this deposition, only four or five days ago, you Linda L. Glenn—Direct 10lla (52) may not have had time to go over very much ma- terial on this case, so I don’t know what your answer to this question would be, but have you had an opportunity to read the opinion of the District Court of July, 1975? A. I have to look at it to see if I’ve seen it. Q. I show you a copy of the opinion. See marks on it. But my first question was whether you read the en- tire opinion or not? A. Not the entire opinion. Q. Do you have an opinion, Miss Glenn, on the question of whether or not juvenile mentally retarded persons should be provided a hearing with regard to their institutionalization and whether, at such a hearing, they ought to have the right to notice to counsel, the oppor- tunity to cross-examine witnesses and present evidence, to be present at the hearing? A. I certainly have an opinion on that, yes. Q. Can you tell us your opinion, please? A. When you're dealing with any placement deci- sion, for example, for a mentally retarded person, you are dealing with a life decision for that person. I mean, you're not dealing with like a—typically, in a mental health case, it might be a temporary admission or in a criminal case, it is at least a time limited type of deci- sion. (53) You're traditionally and typically dealing with something that is going to affect that person’s life for the rest of his life, even if he doesn’t Stay in that institu- tion the rest of his life. That is a heavy decision, I mean, that is a decision that the power of it is tremendous. That’s one reason it should not be left to the parents solely. There has got to be some considerations taken into account. There has got to be an adversary type of pro- 1012a Linda L. Glenn—Direct ceeding so all sides can be heard. It’s got to be totally mens Oy I would even say it could be an administrative —couldn’t be an administrative hearing. There are too many conflicts of interest to that and there is not enough real prestige to that to bring up all the pecrs and the type of image that would make people take it as a serious consideration. You are not dealing with something like a hearing that is going to affect one aspect of a person’s life, like a Welfare financial assistance hearing, or an appeal or something like that. That only affects a minor thing in an individual’s life. This decision on ae of a person is going to affect him for the rest of his I e, so there would have to be a hearing, and in my opinion, a judicial hearing because of the image and their proven (54) impartiality and that can really find out the facts, can insure that that person has a service provided to him that matches up with his individual needs with the set- ting that can both provide those needs in accordance with plans for that person, most appropriately, in the least restrictive setting. It takes away the least number of rights and avoids him of the conflict that would arise. (55) Q. Did you see any way in which a hearing could harm the retarded juvenile involved—strike that. Can you see any way in which a hearing could harm the person who is alleged to be mentally retarded and in need of institutionalization? A. No. Q. Some people have indicated that the process of participation in a hearing could be very traumatic, per- haps excessively traumatic, for the person. Have you any opinion on that question? sts A. I think I’d see it the opposite. Just the dignity given to a person and the self-worth gained by the fact Linda L. Glenn—Direct 1013a that a large number of people would be interested in him getting the appropriate service, the right to be represented by somebody that is going to take his interest first and foremost, even if those interests conflict with the par- ents’ interests, I see more of a dramatic positive side to the person in that hearing. Q. I want to make sure I heard three of your words correctly. You said self-worth gained, g-a-i-n-e-d? A. Yes. Q. Would a hearing be, in your opinion, either an undue interference with a private family matter or (56) would it contribute to some possible breakdown of the family? MR. HOFFMAN: Objection. I’m not sure I think that’s within the areas in which Miss Glenn has been qualified as an expert. Q. Understanding, of course, we are only talking about mentally retarded people? A. Yes, I see it as exactly the opposite. When a family goes through the problems of decision making that I mentioned before, there is much trauma of deciding whether or not to have the child removed from your home to go anywhere, guilt feelings of the parents, like he is shirking his responsibility and not really knowing wheth- er or not his decision is right or not, and that feeling of never knowing if you made the right decision lingers on with parents for years and years and years and can create its own problems of internal family trauma. In fact, it hinders even future family involvement with that child because every time they see the child when 1014a Linda L. Glenn—Direct they go visit him in the institution or wherever he is, it surges up al! the old guilt feelings and indecisiveness about whether or not they made the right decision. (57) A hearing, on the other hand, would answer that for the parents, you know, would make sure the parents felt comfortable with the decision, the fact that other people were involved in that decision, it was heard on both sides, they brought in other testimony, that there was finding of fact. Also it would cut down on the trauma in the family if there was internal, which there often is, conflict in the decision making. Let’s say—well, in many cases, the father will say let’s institutionalize the child, the mother will say no, the father will win, and it will create problems in the family for the next 50 years. So an impartial hearing with fact finding and decision making can decrease the trauma, not increase the trauma. Q. Could you list for us what benefits a hearing would have for the retarded juvenile and his or her fam- ily? A. I think I just listed a few. Q. Well, could you list them again? A. Well, you've relieved the parents of the sole decision making of their own without assistance that may create the problems I mentioned. You relieve the institu- tion of the burdens of those decisions, too. You (58) do have the fact finding, if there is the conflict we talked about earlier, and the season for someone coming to the hearing for a commitment procedure, you have a forum to find out what other alternatives there are, you have a forum for actually finding out what the reason is for Linda L. Glenn—Direct 1015a ~ problem or for the potential commitment so that may- other resources can be applied to that, and you can determine what the individual really needs. It would, again, enhance the self image of the son, and | guess you could—to me, one of the most i> portant things would be if they are really considering institutionalization for the first time, there would be a place where the institution would have to prove that it could meet the needs of those individuals. That’s what has never happened in the past. People have assumed because it’s an institution for the mentally retarded, that it can meet a wide range of needs. But the institutions _ had to prove that for one person, John Jones, . _ eS Seer needs, that that institution could So it puts a burden back on whether or len | not the actual ——— and objectives that (59) need to be met for a individual can be met by wherever he is committed Q. You don’t see any other alternati ( tive for secur those benefits besides the hearing we have talked $e A. Not where it would be impartial and not sub- ject to administrative convenience types of decisions that — service agencies have to make, no. - Now, I'd like to turn, in our final ' ; moments, to the regulations that were enacted in 1973 by the ines sylvania Department of Public Welfare regarding the ad- meee be juveniles under the 1966 Mental Health and os ; : a etardation Act, Sections 402 and 403 of that According to stipulation between th i € parties, these regulations are now used and applied only to the mentally retarded, not to the mentally ill. 1016a Linda L. Glenn—Direct For convenience, | would like to explain for the record that I am referring to the regulations as they are reprinted in Footnote 5 of the initial opinion of the Dis- trict Court of July 24, 1975, as printed at 402 Fed. Sup- plement 1039, Footnote 5 on Pages 1042 and 1043. Do you have those regulations in front of (60) you, Miss Glenn? A. Yes, I do. Q. Paragraph 1 provides that, “All juveniles aged 18 and younger to be admitted to an Institution must be referred from a recognized medical facility, Mental Health/Mental Retardation therapist or Mental Health Agency; however, mentally retarded juveniles may be referred by eithe: a pediatrician, or general physician or psychologist.” Could you tell us, Miss Glenn, whether you note any deficiencies in that paragraph? To save time, you could incorporate by reference some of your earlier testimony; but I’d appreciate your just telling us what you find, what deficiencies you find, in this provision? A. I think I’ve covered the fact that individual pediatricians or physicians or psychologists or even groups thereof do not, historically, have the knowledge appropriate to make decisions like that, do not know the alternative for services available in the communities, and a provision like this is certainly subject to abuse. One of the patterns of behavior for parents attempt- ing to institutionalize their child has always (61) been a shopping behavior, to shop around until they could get the right words on the right page from whatever physician they could find or psychologist; not just parents, other Linda L. Glenn—Direct 1017a social agencies, social case workers, welfare workers a to abuse too readily. | . I take it your earlier comments on the problems depending on institutions and community facilities would also apply to this paragraph? A. Yes. Q. Paragraph 2 of these regulations states, “This referral must be accomplished by a psychiatric evalua- tion and that report must indicate with specificity the rea- sons that the person requires institutional care. How- ever, a medical or psychological evaluation may accom- pany a referral of a mentally retarded juvenile.” Could you comment on that provision, please? A. Well, obviously, the reports by any of what we talked about in provision 1 of the individual pediatrician psychologist, psychiatrist, are subject to the same errors of those individuals. That’s certainly a limited docu- mentation to make a life-long decision for a person, what a psychologist or a (62) psychiatrist says. Q. Does this Paragraph 2 describe the required evaluation in a way which would assure it would con- tain the information necessary to decide whether a child needs institutionalization? A. Not at all. Q. Generally, what additional information would need to be required in order t sti mete ws wes © consider those questions? - A. Well, two major areas. One would be the spe- cificity of the type of information on the person that would be required, of his needs, and what types of en- vironments as well as training programs would be most appropriate to meet those needs, so certainly a specifica- tion of the type of clinical information on the individual. 1018a Linda L. Glenn—Direct On the other hand, information relative to whether or not the person could be kept in the home if another range of services were provided or how decisions are made about service delivery to meet those objectives for the individual in what the alternatives are to total in- stitutionalization of a person. Q. Paragraph 3 of the regulations states, “The Director (63) of the Institution or his delegate, shall have conducted an independent examination of the proposed juvenile, and if his results disagree with the professional’s opinion, the Director, or his delegate shall discharge the juvenile.” Could you comment on whether this review by the institution of the proposed juvenile involves any deficien- cies, in your opinion? A. Well, I’ve already covered that I don’t think the institution should make decisions; but certainly for a regulation covering commitment, any person that is involved in that decision should not be an after the fact type decision, which it sounds like this is. It sounds like a person would have to have been placed into that in- stitution before that particular level of review has taken place or could even take place. Q. I take it you are referring especially to the last four words, “shall discharge the juvenile.” A. Yes, that’s what made me believe— Q. Postadmission? A. It would have to be postadmission, yes. Q. Paragraph 4 of the regulations requires that the telephone number and address of the juvenile’s parents (64) person who is requesting admission for the juvenile must accompany the referral. I don’t think I have any . question of you on that paragraph. Linda L. Glenn—Direct 1019a Perhaps Mr. Hoffman will. It seems to me the gen- eral requirement under the statute that the person who is seeking to admit the child disclose his or her identity. Paragraph 5 of the regulation states, “Within 24 hours after the juvenile’s admission, every youth who is at least 13 years of age must receive written notification (which he signs) explaining his rights indicating that he will be given a status report periodically of his condition; that he can contact by telephone or by mail his parents or the person who requested his admission, and that he will be furnished with the number of counsel (Public Defender’s number; Legal Services) that he can call for representation. An appropriate person shall explain this notice (attached) .” For mentally retarded juveniles, could you explain any deficiencies you see in this paragraph? A. This paragraph, on reading it, I would assume it was written for emotionally disturbed, rather than mentally retarded. Mentally retarded people (65) would not be able to read the written notification or understand the explanation of his rights or have ever had an oppor- tunity to learn how to use the telephone or understand what counsel is, so it’s inappropriate for this alone to be the type of notification or capability of the individual to receive counsel on his own understanding of that, being able to do that. Q. For that minority of the retarded who might know how to use the telephone or might know what coun- sel is, could you describe whether or not that juvenile would be able to independently and freely exercise the choice that would be involved in stating an objection to the institution and calling or notifying counsel of the client’s feelings? 1020a Linda L. Glenn—Direct A. Certainly some mentally retarded people would be able to. However, mentally retarded people that are in institutions are typically afraid to. There is a certain atmosphere of pressure that goes along from staff and peers not to complain, not to go outside the standard rules of daily routine of the institu- tion. I can see them being reluctant, even those that could do it, to actually carry through with these proce- dures. . . (66) Q. So if a retarded person who was in this minority who was more articulate than most didn’t object to being there, could I assume that that person was satis- fied with the institutionalization? A. Not at all, no. Q. Paragraph 6 of the regulations is rather lengthy. I won’t read the entire paragraph into the record. It generally requires that, in the event a juvenile does object, the juvenile being 13 or older, to remaining in the institution, that the Director may continue the institution- alization for two days, during which time he notifies the applicant for the commitment and the referral unit so that either may institute a court commitment proceeding. j The Director of the facility also notifies potential legal services; and if a court commitment proceeding is begun, the juvenile remains institutionalized. I'd like you to first state whether or not you have read the entire text of the paragraph, since I haven’t read it? A. Yes, I have. Q. Could you tell us any problems that you see with that paragraph, again incorporating any of your ear- lier testimony by reference? (67) A. Well, the basic problem is it puts the bur- den on the retarded juvenile to initiate the process. Some Linda L. Glenn—Direct 1021a retarded persons are not going to understand it to initiate it. Others, as I indicated, because of the social pressures within the institution, are going to be reluctant to initiate a process like that. It’s putting an awful lot of burden on young retarded persons to stand up against a big institu- tion, which is not a common behavior. Q. I note that Paragraph 8 of the regulations says that if the patient is “incapable of understanding the no- tification, it shall be written on the notification.” Do you see anything in the regulations that would provide any substitute advocate for the person who doesn’t understand the notification? A. No, I don’t. Q. Does that present any problems for you in evalu- ating these regulations? A. Especially when you’re dealing with mentally re- tarded persons. Q. Could you tell us what other general deficien- cies you find with regard to these regulations, regarding (68) either the time of the hearing, the age restrictions involved, any other kinds of problems? If you like, I can be more specific in my question; but if you can answer, I’d appreciate it. A. One would be the one that the Court noted here, that there is no time, there is no time procedure set up where he can assure there is speedy decision making. The other main deficiencies deal with the fact that there is no specificity with respect to the objectives set for the individuals, time frames on the objectives to be met by the institutions if the person is placed there. You still have an indefinite commitment here. If a person has only one problem—the person may have orly had one 1022a Linda L. Glenn—Direct problem that caused the initiation of commitment proce- dures that could be corrected in one week, two weeks, or three weeks or some other time frame. But there is no responsibility within the regulations to enumerate the ob- jectives for the individual, enumerate the time frames that the institution is to meet these objectives, such that there is review and the person has an opportunity to get out of the institution after the objectives are met that caused the commitment proceeding in the (69) first place. Q. Giving the State of Pennsylvania the benefit of the doubt and assuming that a hearing would be held within a few weeks to a month of institutionalization or even, say, a week or a couple of days, are there harms that would likely result to either the mentally retarded juvenile or someone who is mistakenly thought to be men- tally retarded from that short period of institutonalization before all these procedures can be given effect? You may have answered that earlier. A. I'm not sure I understand the question. Q. Let me clarify it a little bit. You described earlier in great detail the harms that can be caused by institutionalization. Assuming that the State of Pennsylvania does a better job than is called for in the regulations, or even assuming the regulations are followed, so within a few days or week or month a hear- ing is held— A. After the person is institutionalized? Q. After the person is institutionalized, are there harms during that interim period prior to the hearing that can befall an individual? (70) A. Twofold, yes. Assuming, on my part, that the Pennsylvania institutional services that people would be committed to are typical of the rest of the United Linda L. Glenn—Direct 1023a States, where they are understaffed, overcrowded, profes- sionally isolated in most instances, the rea! problems of institutional abuse that goes on—there is a potential for even physical harm to the individual on a short-term basis, crowded wards, lack of staff, clients to have a ten- dency to harm themselves or each other because of lack of supervision and lack of other things to do besides stereotype behaviors or fighting in the institution—staff abuse is pretty common, too, in a contained environment low paid individuals that are overworked, that have 20 much responsibility and so many children to watch, that they get frustrated, and there is abuse that goes on in the institution that is harder to monitor in an institution. So, to the individual himself, there is certainly physi- cal harm that could happen. The other harm really is back to the emotional deci- sion making process of the parents. Once thet commit- ment has been made, I mean, it’s like closing the door on the type of parental-child relationship (71) that existed in the past. There is much more resistance, even if a lot of alternatives are offered to the parents, either in the home or some other residential setting; to go through that emotional thing again, to then go through it to place the child somewhere else or to have the child come back oe even with bee amount of services that would have initially prevented them f i instituti yrs 9 rom ever having to institution- ; So for a second step to be taken for this person for his hearing after he is in the institution is going to be a lot harder for the parents to accept. . Q. I would like your answer and your opinion on an issue that has frequentiy come up in my discussions with other people regarding this case. 1024a Linda L. Glenn—Direct You have said that you would support a hearing and counsel and procedural protections for the child proposed for commitment to an institution for the retarded. Suppose a family seeks such a hearing, a hearing is held, the family explains their reasons for wanting the child to be institutionalized, the (72) stress and crisis of the family is all laid before the impartial tribunal decid- ing the question, and the decision is, because of either the alternatives available or the facts of the particular case, that the child should not go to the institution, but should remain uncommitted, should not be placed in the institu- tion. Wouldn’t it be worse for the child to have to return to this family that has just asked a tribunal to commit the child? Do you have any thoughts on that? A. I don’t know what you mean by worse for the family, | have not— Q. A lot of people seem to feel that the decision— maybe I’m asking you whether you feel this way—the decision at the commitment hearing is simply do we com- mit the child or not; and then, if the decision is not, then the child goes back to the same distressing situation, pos- sibly the home that the child came from. A. Well, through the hearing process itself, a lot of things are going to be cleared up that may have been— well, the fact finding, the conflict that may arise, those would be cleared up, so many (73) of the problems may have been resolved. The exploration of alternatives would give the par- ents, as well as any social agency involved, other re- sources to apply to that family with that child or for that Linda L. Glenn—Direct 1025a child out of the family that would not have bee |! n exhaust- ed if the child had been institutionalized. E So, yes, there may be an impact. But I think it would be a lot less injurious to the person than to have that person institutionalized because they would have knowledge now of the facts and any other resources and social agencies to get appropriate services for the person Q. And you just said “they.” PE mean the family as well as the retarded in- A. Yes. , Q. Here in Massachusetts, for your state facilities, O parents or guardians apply for, and do the institutions accept admissions of mentally retarded juveniles? A. Because of the problems inherent in institutions as not being appropriate for people, we have closed ad- missions to institutions in Massachusetts. Pe. } Ao we have been talking about from the Oo the Pennsylvania case doesn’t h in Massachusetts? jepson A. It is very rare that we cannot develop an al- ternative for a person or provide services in a home; and in those rare instances, like the whole family dies except for the kid and he has no place to sleep for that night, there is a time problem as well as a service problem, an admission could be made, but only short term until, you know, a program is developed. Q. How long, typically, would that short-term emergency— A. It varies so greatly. We would defini efinitely t to keep it under 30 days. But that is rare. Ree Q. How long have admissions been closed to Mas- sachuetts institutions? 1026a Linda L. Glenn—Cross A. Approximately two years. . And— et, rs Before I got here, they closed admissions to chil- dren, and I don’t know what year. | don’t know the age —I think it was six and below, young children. After I got here, we closed it to everybody. Q. And | take it that you have not had any catas- trophe or crisis arise in the care of mentally retarded ec veniles in Massachusetts by the unavailability (75) o those institutions? A. No. | MR. FERLEGER: I have no further questions. Thank you very much. Mr. Hoffman may have one or two. THE WITNESS: Can I make a phone call? (Recess.) (76) Cross-Examination BY MR. HOFFMAN: : | Q. Could you describe for ~ your experience in ing facilities in Pennsylvania? aes I was put on contract by the Department of Welfare in Pennsylvania in, I believe, 1972 : run three training programs for staff and citizens — pro- gram providers in Pennsylvania to learn to use t , _ gram—to use the PASS system, Program Analysis of Ser vice Systems. That is an evaluation system. | Each of the three workshops I held, one in ong burg, one in Pittsburgh, one in Philadelphia, between ‘ and ’73, I believe—it may have been part of °74—the Linda L. Glenn—Cross 1027a workshop is held where one or two days is more ideology and theory and how to use the instrument, and the last two or three days is always evaluating a whois range of different services so they learn how to utilize the evalua. tion instrument itself. So I not only participated on the teams that evaluat- ed services at those three workshops, but supervised the evaluation of all of the review teams that were being trained. There may have been (77) at any one time five or six different teams that were going out to evaluate two to four different services in those areas. So I supervised and participated in the evaluation of approximately 15 or 16 different services in and around the areas. Well, we spread out quite a bit around the areas, but around Harrisburg, Philadelphia, and Pittsburgh. Last year I was asked by the Justice Department to evaluate some of the community programs in the three- county area that served Pennhurst, or Pennhurst serviced people from those three counties. So we evaluated a range of community programs, but some day programs, in that area. MR. FERLEGER: Excuse me. For clarifica- tion, could you tell us which Justice Department, whether it was five counties or three counties—I’m not sure whether you were saying it was three coun- ties you were in or whether the lawsuit involved— THE WITNESS: No, three counties I was in. Q. Were you conducting that survey for the Penn- sylvania Justice Department o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1099%3A06. Public record. Not legal advice.