# brief for appellee — 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%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** brief for appellee - **Published:** January 1, 1979 - **Citation:** 442 U.S. 640 ## Text FOR ARGUMENT. TIteh IN THE MICRAEL ROBAK, JR_CLERE SEP 19 978 Supreme Court of the United States OCTOBER TERM, 1978 No. 77-1715 SECRETARY OF PUBLIC WELFARE of Pennsylvania, et al., Appellants, V. INSTITUTIONALIZED JUVENILES in Pennsylvania institutions for the mentally ill and mentally retarded, et al., Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA BRIEF FOR APPELLEES DAVID FERLEGER 2321 Sansom Street Philadelphia, Pa. 19103 Counsel for Appellees Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-06 2° (i) TABLE OF CONTENTS Page TABLE OF CASES AND AUTHORITIES ........... iii QUESTIONS PRESENTED .......... ENE A Ee REO ee ee 1 STATEMENT OF THE CASE ......ccccccccccccccccs 2 I. ORIGINAL PROCEEDING ............. 2 Il. PROCEDURAL HISTORY ON RE- DEE Cddshcaakcadedauviacenapdbvhendeeussccs 7 Ill. THE HAVERFORD STATE HOSPITAL PE -dentdddcinthninecsnaninecénecesed 9 IV. PLAINTIFFS COMMITTED UNDER EEE Ska ndpdendatdwdacddcascccess 17 V. THE DISTRICT COURT’S' DECI- SE: SUNGEUSUNESEEERSueseenesseetdscecesensce 18 SUMMARY OF ARGUMENT .....................5: 23 PE EE ES OS er en ree 33 I. Prior to Involuntary Indeterminate Mental Institutionalization Upon Parental Applica- tion, Young Persons Are Entitled to Substan- tial Procedural Protections ...................+. 33 A. Institutionalization Results in Severe De- privation of Liberty, Social Stigma, Self- Stigmatization and Discrimination ........... 33 B. Liberty Interests Under the Fourteenth Amendment Are Implicated by the Com- mitment of Young Persons to Mental DE icGbucbbskeeecadcsadustcocsevesss 42 C. The Constitutional Rights of Young Per- sons in the Mental Institutionalization Process Are Not Overcome by Parental Application for Commitment ................ 52 D. Reliance Upon Psychiatrists and Other Professionals to Authorize Commitment is PEE ccdsnitaxenavsgnedeuvseenbeseecsd 66 (ii) E. The Requisites of Due Process ............. F. Neither the State’s Statutes Nor Regula- tions Affect the Unconstitutionality of Commitment Without Hearing Before an Impartial Tribunal, Counsel or Other Trained Representative and Other SEE 18). — > Overcrowding is commonplace. Many residential facilities have as many as 25 to 50 percent more than they were intended to serve. Buildings that are old and poorly designed also create problems. For instance, lavoratory and toilet facilities are often poorly maintained and may even be nonfunctioning. Ancient facilities may make it difficult if not impossible to prepare food in a sanitary fashion; and climate control may be so inadequate as to leave buildings either too hot or too cold (Kugel, 1969, p. 405; Blatt and Kaplan, 1967). Equally inadequate are modern complexes of steel, chrome, and glass, when human caring is absent. Id. ee ee 34 a residential facility necessarily entails a “massive curtailment of liberty,” Humphrey v. Cady, 405 U.S. 504, 509 (1972), as persons are placed in a “total institution” in which every aspect of their lives is regulated by impersonal authority.?! The dangers and negative effects of institutional treatment programs are well-known.”? The process results in what one of the 21Goffman, Asylums (1961). As early as 1938, a federal appellate court recognized the similarities between the depriva- tions of liberty of people in mental institutions and those in prisons. Barry v. Hall, 98 F.2d 222 (D.C. Cir. 1938). A detailed comprison of the conditions in a psychiatric treatment center and a state prison—demonstrating the restrictiveness of the mental facility—is provided in “Brief of Donald McEwan, Pro Se” in Katz, Goldstein & Dershowitz, Psychoanalysis, Psychiatry and the Law 700-702 (1967). For discussion of the nature of mental treatment in the United States, see Note, Developments in the Law— Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1316-1376 (1974); Deutsch, The Mentally Illin America (2d ed. 1949); Grob, Mental Institutions in America: Social Policy to 1875 (1973); Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (1971); Kittrie, The Right to Be Different: Deviance and Enforced Therapy (1971); Rosen, et al., The History of Mental Retardation: Collected Papers (1976). 22Barton, Institutional Neurosis (2d ed. 1966); Belknap, Human Problems of State Mental Hospitals (1956); Gralnick, et al., “Mental Patients in Transition” in Greenblatt, ed., Mental Patients in Transition (1961); Stanton and Schwartz, The Mental Hospital (1954); Wing and Brown, /nstitutionalization and Schizophrenia (1970); Vail, Dehumanization and the Institu- tional Career (1966); Klaber, Retardates in Residence: A Study of Institutions (Project RD-i816-P, Social and Rehabilitation Service, HEW, State of Connecticut, University of Hartford). See testimony of Dr. Ingall at 596a, Dr. Feiner at 474a-475a, Commissioner Glenn at 985a-990a. a ee ee ee ae 35 defendants’ own expert witnesses calls “an emotional deficiency disease” (715a). The “institution extracts, takes away liberties and opportunities in all areas once a person is placed there.” Testimony of Commissioner Glenn at 986a. Most juveniles entering the institutional mental health system have never received any psychiatric treatment before, stay longer than adults,” and a large proportion do not suffer from any major “illness.”4 Nevertheless, all are subjected to the process of institutionalization which can “make children sick,” according to Nicholas Hobbs in his report volume for the HEW-sponsored Project on Classification of Exceptional Children: 23Most juveniles admitted to mental hospitals (53% in 1969) never before received psychiatric treatment; the figure for all age admissions is only 38.7%. Dept. of Health, Education and Welfare, NIMH, Statistical Note 90, Utilization of Psychiatric Facilities by Persons Under 18 Years of Age, United States, 1971, Table 9. Once in a private or public mental institution, juveniles stay longer than adults. /d. at Table 8. 4In 1975, the leading primary diagnosis of juveniles admitted to state and county mental institution was “transient situational disorders and behavior disorders of childhood” which accounted for 54.3% of all juvenile admissions. Dept. of Heatth, Education and Welfare, NIMH, Statistical Note 138, Diagnostic Distribu- tion of Admissions to Inpatient Services of State and County Mental Hospitals, United States, 1975. Most of the nine Haverford plaintiffs here have been given such diagnoses. These relatively minor “transient situational disturbances” are those that “occur in individuals without any apparent underlying mental disorders and that represent an acute reaction to overwhelming environmental stress.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 48 (2d ed. 1968). 36 Go to a big state mental hospital in almost any state and ask to visit the children’s ward. If youare allowed to visit, you will find people, children and staff alike, caught up in a no-exii game. Patients and staff play their roles, each defined by the other, both prescribed by elaborate regulations and procedures that serve one purpose: to maintain the stability of the institution. Most of these institu- tions are so large, so unwieldly, so antiquated in design, so _ staffed, so burdened with the miseries of man that everyone involved must devote most of his energies to maintaining a steady- state situation. The metaphor of illness rules. Change in or deviation from role requirements cannot be tolerated. Apathy goes unnoticed. Precise adherence to role expectation is praised and rewarded, while deviations and serious efforts to change the system are punished. In such a setting, hospitals can indeed make children sick.?5 The particular dangers of institutionalization for the retarded include a high rate of mortality (generally higher, especially for the young, than in the commu- nity); an adverse effect on intelligence and an abnormally high prevalence of personality disorders.”6 25Hobbs, supra note 20, at 130. Institutional care during early childhood is especially to be avoided. There is strong evidence that one institutional admission of longer than a week or repeated admissions before the age of 5 are associated with increased behavior disturbances and instability in adolescence. Douglas, Early Hospital Admissions and Later Disturbances of Behavior and Learning, 17 Dev. Med. Child Neurol. 456 (1975); Quinton, Early Hospital Admissions and Later Disturbances of Behavior: An Attempted Replication of Douglas’ Findings, 18 Dev. Med. Child Neurol. 447 (1976). 6Studies collected in Edgerton, et a/., “Mental Retardation System,” in Hobbs, ed., /ssues in the Classification of Children, Vol. II, 63-64 (1975). a 37 Harmful stereotypical “institutional” behaviors (such as biting and head banging) are learned by the retarded who live in institutions.’ After the emergence of the first institutions for the retarded in the United States 120 years ago in an atmosphere of optimism, the facilities failed to fulfill their expectations for cure or rehabilitation. By 1880, the earlier prevention model was succeeded by a “pity model” which supported the provision of custodial care. By the turn of the century and with the develop- ment of the eugenics movement,”* a societal image of the retarded as a danger and a menace to society became fixed.2? As one commentator explains the effect today of this history: ... Many of our institutions, to this very day, operate in the spirit of 1925 when inexpensive segregation of the scarcely human retardate was seen as the only feasible alternative to combat a social menace. I am not proposing that this view is still held; I am proposing that most institutions function as if this view were still held.*° 27Testimony of Commissioner Glenn at 987a-988a. 28 See Buck v. Bell, 274 U.S. 200 (1927), upholding a statute growing out of this movement. 2For analysis of this development, see Baumeister, The American Residential Institution: Its History and Character in Baumeister and Butterfield, eds., Residential Facilities for the Mentally Retarded (1970); Kugel and Wolfensberger, eds., Changing Patterns in Residential Services for the Mentally Retarded (1969); Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (E.D.Pa. 1977). 30Wolfensberger, The Origin and Nature of Our Institutional Models, in Kugel and Wolfensberger, supra note 29, at 129 (emphasis in original). 38 Institutions for the retarded are known to subject their inmates to regimented, impersonal and ware- house-like conditions.2! For example, this is the way one federal court d»icribes the daily routine in the institution to which plaintiff George S. has been committed for the past eight years: These institutions are the most isolated and restrictive settings in which to treat the retarded. Pennhurst is almost totally impersonal. Its residents have no privacy—they sleep in large, overcrowded wards, spend their waking hours together in large day rooms and eat in a large group setting. They must conform to the schedule of the institution which allows for no individual flexibility. Thus, for example, all residents on Unit 7 go to bed between 8:00 and 8:30 p.m., are awakened and taken to the toilet at 12:00-12:30 a.m. and return to sleep until 5:30 a.m. when they are awakened for the day, which begins with being 31 See Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (E.D. Pa. 1975). When institutionalized retarded children experience adult contact, it is almost exclusively for management, custodial or child-care purposes; only 4% of ward attendants’ time is devoted to training and habilitation. Velt, Interpersonal Interactions Between Institutionalized Retarded Children and Their Attendants, 80 Am.J. Mental Defic. 535 (1976). One study notes that the practice of moving institu- tionalized juveniles and staff from one unit to another can be devastating; during a 3'4 year period, at least 99 different day staff were on duty with the children being cared for by a total of 246 different adults. The children were moved at least twice and some as many as 18 times. Tizard, The Role of Social Institutions in the Causation, Prevention and Alleviation of Mental Retardation, Haywood, Social-Cultural Aspects of Mental Retardation (1970). See Klaber, supra note 22. — a aii 39 toileted and then ang to wait for a 7:00 a.m. breakfast.*? The “deprivation of now inherent in institution- alization” for young persons classified as mentally ill and mentally retarded is accurately summarized by the District Court: One expert testified to the “derailment from the usual course of one’s life, the dreary regimen even in the most progressive hospitals, the extreme deprivation and limits” which are the effects of institutionalization. Institutions prevent persons from being exposed to normal communit y experiences and prevent individual growth. Wit respect to mentally retarded persons, these conditions may be rendered even more acute by the person’s inability to protect himself against the dehumanizing effects of institutionalization. Fi- nally, these effects appear to be the same regardless of whether the institution is state-operated or privately-operated; the crucial variable is size.>? The “powerful long-term effect on the individual's life” (990a) of institutionalization reverberates long after release from the facility. 32 Halderman v. Pennhurst State School and Hospital, supra note 31, 446 F.Supp. at 1303 (citations omitted). Many other courts have found similar regimented and depersonalized conditions in institutions for the retarded across the country. E.g., New York State Association for Retarded Children v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y. 1973), modified, No. 72-C-356/357 (E.D.N.Y., May 23, 1973), 393 F.Supp. 715 (E.D.N.Y. 1975) (approving consent order); Horacek v. Exon, 354 F.Supp. 71 (D. Neb. 1973); Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala. 1971), 334 F.Supp. 1341 (M.D. Ala. 1971), 344 F.Supp. 373 and 387 (M.D. Ala. 1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (Sth Cir. 1974). 3Opinion at 1070a. 40 Severe social stigma, self-stigmatization, job and license discrimination also result from the experience of commitment to mental institutions for the mentally ill and the retarded.» It is the fact of institutionaliza- tion, not the procedures used, which stigmatizes.** As Opinions at 795a, 1067a, 1077a-1078a. On stigma generally, see Goffman, Stigma: Notes on the Management of Spoiled Identity (1963). Regarding stigma and the mentally ill, see, e.g., Testimony of Dr. Kandler at 574a-575a, Dr. Messinger at 622a, Dr. Feiner at 475a, Dr. Ingall at 596a and Dr. Miller at 705a; Jn re Ballay, 482 F.2d 648, 668 (D.C. Cir. 1973); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D. Wis. 1972), vacated and remanded, 414 U.S. 473 (1974), on remand, 379 F.Supp. 1376 (E.D. Wis. 1974), vacated and remanded, 421 U.S. 957 (1975), on remand, 413 F.Supp. 1318 (E.D.Wis. 1976); Braginsky, et al., Methods of Madness: The Mental Hospital as a Last Resort (1969). On the mentally retarded and stigma, see Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279, 293-295 (E.D.Pa. 1972); Edgerton, The Cloak of Competence: Stigma in the Lives of the Mentally Retarded (1967); Braginsky & Braginsky, Hansels and Gretels: Studies of Children in Institutions for the “Mentally Retarded” (1971); Severance & Gasstrom, Effects of the Label“ Mentally Retarded” on Causal Explanations for Success and Failure Outcomes, 81 Am. J. of Mental Def. 547 (1977). In one study of school children in the community, school teachers were found to have low expectancies of students labeled retarded; the teachers maintained these expectancies even when confronted with normal behavior and, in fact, misinterpreted actual behavior in response to their bias. Foster et al, Expectancy and Halo Effects os a Result of Artificially Induced Teachers Bias, 1 Contemporary Educational Psychology 37 (1976). 3“ Unfortunately, there is a stigma being attached to beingina hospital, which would be another reason why all care ought to be taken before this type of drastic step be taken. I never heard the fact that a judge or attorney being involved in a proceeding increases that stigma.” Testimony of Dr. Kandler at 574a-575a. (continued) 4) the lower court found, this “stigma is imposed both outwardly, in that juveniles who have been in institutions encounter substantial obstacles in the community, and inwardly in that the self-image of the juvenile is almost severely damaged.”26 (footnote continued from preceding page) Non-institutional mental health care is not viewed in the same highly negative way as is institutional care: The lay public seems to adhere to a single operational definition of the mental patient. To the average man, a person becomes a mental patient only when he enters a psychiatric hospital. Rabkin, Public Attitudes Toward Mental Illness: A Review of the Literature, 10 Schizophrenia Bull. 9 (1964). This deprecating label, which applies for an indefinite period after discharge from the institution, is not in general used for psychiatric patients seen only in private consultation or clinics. /d. Opinion at 1067a (notes omitted). The public fears, distrusts, dislikes and excludes those persons labeled “mental patients.” Rabkin, supra note 35. The prejudice against mental illness results not simply from an ignorant or biased public but, in part, from the activities of psychiatrists. Schwartz & Schwartz, Reducing the Stigma of Mental Iliness, 38 Diseases of the Nervous System 101 (1977). Numerous studies document the self-stigmatization which lowers self-esteem and encourages aberrant behavior in both mentally ill and mentally retarded institutionalized persons. E.g., Lindsey, Patient Inquiry Into Mental Hospitalization: A Quantitative Analysis, 10 Ado- lescence 337 (1975); Bouliew, Do Institutions Maintain Retarded Behavior, 9 Mental Retardation 36 (1971). Commissioner Glenn testified that, with regard to those persons committed as retarded, “the stigma really hurts the person’s later integration into the community. * * * The discrimination that is placed on these people is quite traumatic.” (991a). See also authorities cited supra at note 34. eer yes 42 B. Liberty Interests Under the Fourteenth Amendment Are Implicated by the Commit- ment of Young Persons to Mental Institutions. Mental commitment is generally considered a deprivation of liberty under the Fourteenth Amend- ment and the states are required to provide substantial procedures to protect persons from erroneous commit- ment to mental institutions: There can be no doubt that involuntary commit- ment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the state cannot accomplish without due process of law. Specht v. Patterson, 386 U.S., at 608, 18 L.Ed.2d 527, 87 S.Ct. 1428 (1967). Commitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. O’Connor v. Donaldson, 422 U.S. 563, 580 (1975) (Chief Justice Burger, concurring). This Court has consistently upheld claims by inmates of mental institutions to hearing and other procedures protec- tive of their constitutional rights. Baxstrom v. Herold, 383 U.S. 197 (1966); Specht v. Patterson, 386 U.S. 605 (1967); Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504 (1972); McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972).%” 37The lower federal courts have uniformly held that due process mandates procedures similar or identical to those required by the District Court here. E.g., Lessard v. Schmidt, supra note 34; Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala. 1974); Bell v. Wayne County, 386 F.Supp. 1085 (E.D. Mich. (continued) 43 The Court’s deep concern that due process be afforded to the mentally disabled is by no means newly conceived. Sixty years ago, in Chaloner v. Sherman, 242 U.S. 455 (1917), a challenge was made to state mental incompetency procedures. Speaking for a unanimous court, Justice Brandeis declared: As the plaintiff had notice and opportunity to be heard at each stage of the proceedings, the essential elements of due process of law were fully — and the court had jurisdiction to enter that order. 242 U.S. at 455. See also Dexter v. Hall, 82 U.S. 9, 25 (1872) (“...a lunatic needs more protection than a minor.” “Both such classes of persons are regarded as under the protection of the law.”). In an attack on Minnesota mental commitment procedures, this Court upheld a statute which provided for a hearing, counsel, confrontation, a record and the right to appeal. Minnesota ex rel. Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 276-277 (1940) (“We fully recognize the danger of a deprivation of due process in proceedings dealing with persons charged (footnote continued from preceding page) 1974); Dixon v. Attorney General of the Commonwealth of Pennsylvania, 325 F.Supp. 966 (M.D. Pa. 1971); Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968); In re Ballay, supra note 34; In re Basso, 299 F.2d 933 (D.C. Cir. 1962); In re Barnard, 455 F.2d 1370 (D.C. Cir. 1971); Sarzen v. Gaughan, 489 F.2d 1076 (Ist Cir. 1973); Kendall v. True, 391 F.Supp. 413 (W.D. Ky. 1975); Barry v. Hall, supra note 21; Doremus v. Farrell, 407 F.Supp. 509 (D. Neb. 1976); Suzuki v. Quisenberry, 411 F.Supp. 1113 (D. Hawaii 1976); Suzuki v. Alba, 438 F.Supp. 1106 (D. Hawaii 1977). 44 with insanity or, as here, with a psychopathic personality as defined in the statute.”).** In Specht v. Patterson, 386 U.S. 605 (1967), the Court rejected the notion that individual rights can be bypassed by labeling a procedure “civil” rather than “criminal.”3? Discussing mental commitment pro- ceedings under the Colorado Sex Offender Act, the Court held, “These commitment proceedings whether denominated civil or criminal are subject both to the Equal Protection Clause of the Fourteenth Amend- ment as we held in Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 750, 15 L.Ed.2d 620, and to the Due Process Clause.” Specht, 386 U.S. at 608. 3% See Logan v. Arafeh, 356 F.Supp. 1265 (D. Conn. 1972), aff'd mem. sub nom. Briggs v. Arafeh, 411 U.S. 911(1973), where the district court upheld a statute noting that a “judicial decision after receiving evidence from a general physician and a psychiatrist in an adversary hearing is fully adequate to safeguard against involuntary commitment through mistake or abuse.” 346 F.Supp. at 1270. Logan permitted a delay in hearings for people certified as “dangerous;” the Pennsylvania statutes here require only a finding of “in need of care or observation,” 1966 Act, or “in need of treatment.” 1976 Act. The irrelevance of civil-criminal labels was the basis for the decision in Giacco v. Pennsylvania, 382 U.S. 399 (1966), where an acquitted criminal defendant challenged a state law permitting a jury to assess costs against him. Pennsylvania courts charac- terized the statute as “of a civil character.” Noting that it “provides the State with a procedure for depriving an acquitted defendant of his liberty and his property,” the Court held that Fourteenth Amendment “protection is not to be avoided by the simple label a State chooses to fasten upon its conduct or statute.” 382 U.S. at 402. “The due process required in mental commitments today is not unlike that described by Blackstone. Before a person could be (cortinued) 45 The pervasive concern has been that no person may be caused to suffer a loss of liberty—for whatever reason—without stringent decision-making require- ments designed to minimize the ever-present risk of error and to assure proper disposition of the case.*! The defendants, invoking the “family’s right of privacy” and “the sanctity of parental responsibility,”4? maintain that a young person’s constitutional right to (footnote continued from preceding page) declared retarded (“an idiot”), a writ de idiota inquirendo would be filed and “tried by a jury of twelve men;” a declaration that one was mentally ill (a “lunatic”) did not occur until after the lord chancellor, “upon petition or information, grants a commission in the nature of the writ de idiota inquirendo, to inquire into the party’s state of mind.” Blackstone, Commentaries on the Laws of England 305 (Wendell, ed., 1852). In Blackstone’s day, “The legislature, to prevent all abuses incident to such private custody, hath thought proper to interpose its authority, by statute [citation omitted] for regulating private mad-houses.” Jd. As discussed more fully below, infra at §11.B., from its earliest Constitution and laws until recently, Pennsylvania required judicial proceedings for mental commitments of all persons, regardless of age, to mental institutions, whether publicly owned or not. ‘'Discussing mental commitments, Wigmore declares, “In such proceedings, nothing can excuse the judge from personally hearing and examining the party to be committed” (emphasis in original) because of the extreme risk of an improper commitment: No greater cruelty can be committed in the name of the law. And any statute which makes such a result possible, by refusing to let a sane person appear before the judge and plead his own case ana hear the witnesses against him, is a thor- oughly bad statute. 5 Wigmore, Evidence §1400 (3d ed., 1940) (footnote omitted). “Brief for Appellants at 28. 46 liberty is not implicated at all in mental institutionali- zation. Finding no support in any previous decision of this Court, this conclusion misconceives constitutional doctrine which full recognizes the applicability of the central meaning of liberty—freedom from physical confinement—to young persons, while setting variable limits on other asserted liberties of minors under the Fourteenth Amendment. The “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachusetts, 321 U.S. 158, 170 (1944). For example, young persons may be required to receive a basic education in school, Wisconsin v. Yoder, 406 U.S. 205, 213 (1972), and may be limited in their access to objectionable material. Ginsberg v. New York, 390 U.S. 629 (1968). In addition, parents and guardians have the right to direct the upbringing of their children in their early and formative years. E.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925). Two controlling principles emerge from the Court’s decisions regarding parents and children. Where the state unreasonably intrudes into the family’s domain and thereby jeopardizes the family’s function and strength as the primary socialization mechanism, the state’s intrusion will be struck down. See Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1971). In precisely parallel fashion, where parental decisions unreasonably jeopardize the young person’s “opportunities for growth into free and inde- pendent well-developed men and citizens,” govern- mental intrusions into the family will be upheld. Prince v. Massachusetts, 321 U.S. 158, 165 (1944). In Prince, 47 the Court upheld restrictions on the rights of guardians and supported certain regulation of family interests, explaining: But the family itself is not beyond regulation in the _— interest, as against a claim of religious berty. [citations omitted] And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interest in youth’s well-being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Id. at 166 (notes omitted). And more recently, in Wisconsin v. Yoder, 406 U.S. 205 (1972), limitations on parental powers continued to receive approval; such regulation is proper “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” /d. at 234. The extent of control over juveniles by parents and guardians is broad enough to provide appropriate deference to the “importance of the family,” Stanley v. Illinois, 405 U.S. 645, 651 (1972), but narrow enough to protect the independent personal interests of the most powerless of the family’s members.*? The presence of “family interests” in a case does not efface the interests of the child as an individual. Other courts have uniformly agreed that, in the parent-child context, the law as parens patriae must “Dr. Feiner testified that “...the child has some intrinsic vulnerability based upon the fact the child is dependent to begin with, the child is more controllable in certain ways, the child is also often a newcomer to the setting, the last to be present in this little system . . .” (472a). , 48 protect the welfare of children, an interest to which that of parents must yield.“* The key consideration in all these cases is that society has an interest—independent of parents—in assuring the welfare of children. “The issue arises most often in custody cases. E.g., Holtsclaw v. Mercer, 145 F.2d 388 (D.C. Cir. 1944); Langan v. Langan, 150 F.2d 979 (D.C. Cir. 1945). See In re Stuart, 114 F.2d 825 (D.C. Cir. 1940) (right of parents to control upbringing of children not absolute); Newton v. Burgin, 363 F.Supp. 782(W.D.N.Ca. 1973) (Three-Judge Court), affd, 414 U.S. 1139 (1974) (parental constitutional right to control children can be limited by statute). Among the many situations in which parental “rights” and “powers” have been held properly restricted are juveniles curfews, Bykofsky v. Borough of Middletown, 401 F.Supp. 1242 (M.D. Pa..1975), cert. den., __ U.S. __ ; drinking age laws, Repub- lican College Council of Pennsylvania v. Winner, 357 F.Supp. 739 (E.D.Pa. 1973); sex education, Cornwell v. State Board of Education, 314 F.Supp. 340 (D. Md. 1969), aff'd, 428 F.2d 471 (8th Cir. 1970), cert. den., 400 U.S. 942 (1970); blood transfusions, People ex rel. Wallace v. Labrenz, 411 Ill. 618, 104 N.E.2d 769 (1952), cert. den., 344 U.S. 824 (1952); corporal punishment, Ware v. Estes, 328 F.Supp. 657 (N.D.Tex. 1971); visitation, Comm. ex rel. Heston v. Heston, 98 A.2d 477, 173 Pa.Super. 260 (1953); approval of personal injury settlements, Rafferty v. Rainey, 292 F.Supp. 152(E.D. Tenn. 1968); abortion, In re Smith, 295 A.2d 238, 16 Md.App. 209 (1972) (mother cannot compel daughter to submit to abortion); organ transplants, Hart v. Brown, 289 A.2d 385, 29 Conn.Sup. 368 (1972); sterilization, Frazier v. Levi, 440 S.W.2d 393, 394 (Civil App. Tex. 1969); and monetary matters. Ellis v. Massenberg, 126 N.C. 129, 35 S.E. 40 (1900) (action to set aside deed); White v. Osborne, 251 N.C. 56, 110 S.E.2d 449 (1959); Babcock v. Fisk, 327 Mich. 72 (1950) (control of publicly raised funds). The contrary assertion of defendants that, except in life-or- death situations, parental wishes always prevail over asserted interests of children, is totally unsupported in law or reason and must be rejected. 49 Where constitutional rights are at stake, and family interests are not implicated, this Court has recognized claims by young persons asserting liberties in various substantive and procedural realms. E.g., Goss v. Lopez, 419 U.S. 565 (1975) (suspension from public school); Tinker v. Des Moines Independent Com- munity School District, 393 U.S. 503, 506-507 (1969) (First Amendment right to political expression); Erznoznik v. City of Jacksonville, 422 U.S. 205, 212- 214 (1975) (First Amendment interest in flow of communicative material); Ingraham v. Wright, 430 U.S. 651, 672-674 (1977) (Due Process right to be free from unjustified intrusions on personal security); Carey v. Population Services International, 431 U.S. 678 (1977) (access to contraceptives). In these cases, while the extent of minors’ liberty interests was held subject to possible limitation, the existence and nature of those liberty interests, similar to those of adults, was nevertheless recognized. One liberty interest of young persons which has repeatedly been identified by this Court as implicated by the Fourteenth Amendment is the right to be free from physical confinement. See Haley v. Ohio, 332 U.S. 596, 601 (1948); Gallegos v. Colorado, 370 U.S. 49, 54 (1952); Kent v. United States, 383 U.S. 541 (1966); In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970); McKeiver v. Pennsylvania, 403 U.S. 528 (1971); Breed v. Jones, 421 U.S. 519 (1975). These cases do not admit of any question as to the extent of the juvenile’s liberty interest in not being confined, for whatever purpose, in an institution. 4SThe students’ ages in Tinker were 8, 11, 13, 15 and 16. 393 U.S. at 516. 50 There is no suggestion in these decisions that parental endorsement of a decision to separate the young person from the home and to confine him or her in an institution somehow nullifies the minor’s Fourteenth Amendment interests.* The Haley-Gault-Breed line of cases are emphatic that a constitutional liberty is discerned even if the purpose of the confinement is “clinical”*’ treatment or “to save the child:”48 Regardless of the purposes for which the incar- ceration is imposed, the fact remains that it is incarceration. The rehabilitative goals of the system are admirable, but they do not change the drastic nature of the action taken. Breed v. Jones, supra, 421 U.S. at 530, n. 12.4 46In Ginsberg v. New York, 390 U.S. 629 (1968), the Court held that the Constitution supports the parental “claim to authority in their own household” to direct the rearing of children. Jd. at 639 (emphasis added). This suggests that parental authority may not be absolute when the young person is excluded from the household. 47JIn re Gault, 387 U.S. 1, 16 (1967). In re Winship, 397 U.S. 358, 365-366 (1970). 494 case strikingly on pointis Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968), where a nine year old child was committed to a training school for the feeble-minded and epileptic: Bui, like Gault, and of utmost importance, we have a situation in which the liberty of an individual is at stake, and we think the reasoning in Gault emphatically applies. It matters not whether the proceedings be labelled “civil” or “criminal” or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of involuntary incarceration—whether for punishment as an adult for a crime, rehabilitation as a juvenile for delinquency, or treatment and training for a feeble-minded (continued) tp tes -—— -— 51 It would have made no constitutional difference if Gerald Gault’s mother had favored his confinement for making an obscene telephone call or if Gary Steven Jones’ mother had preferred that he be tried as an adult for robbery. The deprivation of liberty and other harms which flow from commitment are accompanied by the serious and irreparable stigma described above. Such injury to standing, reputation and one’s future functioning as a citizen, coupled with the deprivation of physical freedom, implicates the young persons’ liberty interests under the Fourteenth Amendment. See Wisconsin v. Constantineau, 400 U.S. 433 (1971); Paul v. Davis, 424 U.S. 693 (1976).%° Without question, the Fourteenth Amendment liberty interests of young persons are affected when (footnote continued from preceding page) or mental incompetent—which commands of the consti- tutional safeguards of due process. 396 F.2d at 396. See Saville v. Treadway, 404 F.Supp. 430 (M.D.Tenn. 1974); Kidd v. Schmidt, 399 F.Supp. 301 (E.D. Wis. 1975). 0 See Note, Developments in the Law, supra note 21, 87 Harv. L. Rev. at 1198-1201. In Gary W. v. Louisiana, the court concluded: Involuntary institutional confinement of any person, adult or child, entails a “massive curtailment of liberty,” Hum hrey v. Cady, 1972, 405 U.S. 504, 509. Such institu- tionalization stigmatizes those confined and may at times exceed even criminal incarceration in its destructive impact on an individual's personal freedom. 437 F.Supp. 1209, 1216(E.D. La. 1976) (commitment of children to mental institutions). 52 they are indeterminately confined in mental institu- tions.>! C. The Constitutional Rights of Young Persons in the Mental Institutionalization Process are not Overcome by Parental Application for Commitment. The Facts Regarding Families Seeking Commitment of “Mentally Ill” Minors As the lower court’s unchallenged factual findings*? and the record in this litigation shout forth, applica- tions for commitment of young persons to mental institutions are not the expression of calm, rational, reliable, informed conflict-free parents and guardians. On the contrary, the expert witnesses for all parties $1 This conclusion is reached in a persuasive recent analysis of the question. Teitelbaum & Ellis, The Liberty Interest of Children: Due Process Rights and Their Application, 12 Family Law Quarterly 153 (Fall, 1978). (mae Defendants raise the spectre of application of the decision in this case to provision of services in the community in non- institutional home-like settings. Brief for Appellants at 34, n. 17. The complaint, the lower court’s opinions, findings and order, however, deal only with institution-based residential care as distinguished from community-based care. Plaintiffs make no claim regarding non-institutional care in this case. S2Opinion at 1060a-1070a. The defendants do not challenge any factual findings on appeal as clearly erroneous. See Fed. R. Civ. Pro. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394-395 (1948) (stating rule); Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 274-275 (1949) (application of “clearly erroneous” test to findings based largely on expert testimony). $3 agreed that families seekir z commitment of allegedly handicapped children are characterized by severe stress, disharmony and dislocation.*} The problems of children are a function of intrafamilial problems and exist in a context of a weakened family structure with conflict overtly expressed.*4 The juvenile behavior which precipitates institutionalization may be pro- voked by the parents; there are also many cases where the child may be driven to such behavior by the conflicts at home.°5 53 See testimony of Dr. Kandler at 543a, 553a-554a, 570a-57 la; Dr. Ingall at 588a-590a, 601a; Dr. Messinger at 616a-619a; Dr. Tashjian at 65la-652a, 656a-657a; Dr. Masterson at 727a-728a, 733a-734a. Eg., Alanen, The Family in the Pathogenesis of Schizophrenia and Neurotic Disorders, 24 Acta Psychiatrica et Neurologica Scandinavica, Suppl. 189 (1966); Lidz, ef al., Schizophrenia and the Family (1966); Lidz, et al., The Intra- familial Environment of Schizophrenic Patients. Il. Marital Schism and Marital Skew, 114 Amer. J. of Psychiatry 281 (1957). See generally, Fleck, Some Basic Aspects of Family Pathology, in Wolman, ed., Manual of Child Psychopathology 189 (1972). ‘4See testimony of Dr. Ingall at 588a, 610a; Dr. Messinger at 616a-619a; Dr. Masterson at 733a-734a; Dr. Tashjian at 668a- 669a; Dr. Feiner at 467a-469a, 47 la-472a, 501a-502a; Wohiman, Family Dynamics and Schizophrenia, 6 J. of Healthand Human Behavior 147 (1965); Weeks & Mack, The Child, in Nicholi, ed., The Harvard Guide to Modern Psychiatry (1978). 5SSee testimony of Dr. Masterson at 733a; Dr. Feiner at 468a. One court which noted the possibility that a “breakdown in parental control” of a child could result from failings in the parent rather than in the minor, required inquiry into “intra- family parent-child conflict.” Jn re Henry G., 28 C.A.2d 276, 284- 285, 104 C.R. 585 (1972), describes the issue in this way: The Fourth Commandment is still an integral part of the beliefs of our society. It is one thing, however, to say that a teen-age minor has struck the parent—it is another thing if that striking is done in self-defense and in response to traumatic situations initiated by the parent. 54 Parents will often seek to institutionalize children for improper reasons. This stems from honest mistakes, ignorance, lack of awareness of alternatives to institutionalization, lack of community resources or sometimes from malice or ill will.5* In a significant number of cases, the parental purpose of bringing a child to treatment “has been to accuse him, to punish him, to separate him from the home. The motivation is not always good.”*’ Experts for both plaintiffs and defendants were in agreement that parents are not particularly good observers of children’s behavior and symptoms and, especially with the high feelings that run in these situations, parents are not reliable sources of factual information about the child and his or her behavior.** Parents who bring their child to professionals seeking care “can’t be objective reporters” of the behavioral background of the child.5? Parents often exaggerate and misinterpret the actions of their children and may often react antagonistically to their children, in these cases. - S6See testimony of Dr. Kandler at 543a, 553a-554a; Dr. Miller at 685a. ‘Testimony of Dr. Ingall at 60la. 58 See testimony of Dr. Masterson at 733a; Dr. Kandler at 543a; Dr. Ingall at 592a, 60la; Dr. Sugar at 40la. Testimony of Dr. Feiner at 478a. See testimony of Dr. Messinger at 623a-624a. Testimony of Dr. Sugar at 404a-408a. Young persons are often committed not to resolve problems but to avoid them: From the point of view of the family, the primary function of scapegoating is that it permits the family to maintain its solidarity. In all the disturbed families, there were very (continued) 55 The roster of Haverford State Hospital plaintiffs committed under the challenged statute is a complete one as of the time suit was filed; no selection, random or otherwise, was made (945a). Every one of these young persons comes from a disrupted, chaotic or conflicted home. For example, Kevin S. was physically abused by his schizophrenic mother who had lied to obtain her own admission to a mental hospital to give birth to him. Richard S.’ mother did not have him home until he was two and he stayed with her only two years. James Paul M. lived with just his father, his mother having died not long before his commitment. Edward B.’s parents admitted tricking him into the hospital. Richard C.’s father had a drinking problem. William B’s parents separated during his infancy; he was committed after he began living with his father, stepmother and stepbrothers. According to hospital records, his life with family members subjected him to extreme inconsistency, disorganization and lack of structure. Similarly, Francis B. comes from a disor- ganized family which rejected him (the records refer to “the almost total rejection of Frankie by everyone in his (footnote continued from preceding page) severe strains which continuously threatened to disrupt the family. . . . By focusing on one particular child, the families were able to encapsulate problems and anxieties which could potentially disrupt various family processes. There see to be an added solidarity between the parents who stood united against the problem child. The fact that it is a child who is disturbed permits the parents to continue to perform the tasks necessary for household maintenance. Vogel & Bell, The Emotionally Disturbed Child as the Family Scapegoat, in A Modern Introduction to the Family 125 (1968). See also, Laing & Esterson, Sanity, Madness and the Family (1964). 56 family”). There is a question of physical abuse in his case; this plaintiff “could no[t] do right in parents’ eyes.” Maria L.’s parents were saved from divorce only by the birth of a new child. Her father drinks and won’t assume any responsibility for the four children in the family. Her mother, on the brink of mental breaddown, several times tried to choke Maria.Thomas W.’s mother and stepfather, involved in an unstable marriage, were arrested after a severe beating of Thomas which resulted in his hospitalization. Social service agencies have cared for him since. When these family dynamics are viewed in the context of the alleged behaviors which precipitate the request for commitment, “conflicts between the concerns and interests of the parents, and the best interests of the child frequently arise. . . .”°! The Facts Regarding Families Seeking Commitment of “Retarded” Minors Stereotypes regarding the retarded and their mental institutionalization are tragically hardened and erro- neous. A person’s level of retardation does not predetermine his or her need for institutionalization. 61Opinion at 1068a. See authorities cited supra at notes 53, 54 and 60. In a recent study of 587 inpatient psychiatric admissions of children over a five year period, it was found that low functioning psychotic children are admitted to psychiatric hospitals not because of a change in the child’s behavior but because of the particular stress on the family. Hagamen, Family Support Systems: Their Effect on Long-Term Psychiatric Hospitalization in Children, 16 J. Amer. Acad. Child Psychiatry 53 (1977). 62Testimony of Commissioner Glenn at 997a. 57 While degree of intellectual and physical impairment is a factor in determining institutionaiization of retarded individuals, it clearly does not stand alone nor is it necessarily the most important. Other factors are the degree of family disorganization, demographic characteristics, parental attitudes toward childrearing and mental retardation, availability of community resources, and the professional philosophies of those consulted for advice.®? “Professional philosophies influence decisions because patient oriented clinicians are more likely to give first priority to factors they consider advantageous to the child, whereas family oriented clinicians are more likely to base their recom- mendations on those which they assume to be best for the family.” Parents of retarded persons often resort to seeking institutionalization as a means of securing relief from severe physical and emotional strains and because of a lack of finances and adequate community resources:® However, if these parents are “given honest information about residential and community alternatives and time to reflect,” most of them SEg., Eyman, et al., Factors Determining Residential Placement of Mentally Retarded Children, 76 Amer. J. of Mental Deficiency 693 (1966); Gralicker, et al., A Study of Factors Influencing Placement of Retarded Children in a State Residential Institution, 69 Amer. J. of Mental Deficiency 553 (1965). **Eyman, op. cit. supra note 63, at 697. *5 See, e.g., Justice, et al., Problems Reported by Parents of Mentally Retarded Children—Who Helps?, 75 Amer. J. of Mental Deficiency 685 (1971). For a sensitive discussion of what parents face, see testimony of Glenn at 100la-1005a. See also Teitelbaum and Ellis, supra note 51. 58 “come to realize that the placement in most institutions means placing a lid on the child’s potential by consigning him to custodial care— sometimes humane but often inhumane by — standards. Most good residential schools (offering education and training as well as care) are extremely expensive. Most state institutions are still little more than warehouses which ‘store’ people.” Inappropriate and unneeded institutionalization is often the unintended result. The three named plaintiffs committed as retarded include two who are only moderately retarded. George S., abandoned by his parents, was institutionalized after a foster mother became ill and a second foster home became too crowded. Gina S., was placed out of the family home when her parents divorced and, three years later, was taken by her mother directly from the county infants’ home to the mental institution. Both parents of Nancy Louise D. were alcoholic and mentally retarded; the county welfare department. placed her first in foster care and then into the institution. The only evidence on these matters is the expert testimony of Linda Glenn, Assistant Commissioner for Mental Retardation, Department of Mental Health, Commonwealth of Massachusetts (972a-1049a). Her testimony, unchallenged by the defendants, confirms the trying situation faced by families of the retarded and those classified as retarded. The District Court was surely correct in these factual findings and conclusions: Hobbs, The Futures of Children 142 (1975) (citation omitted). *’Testimony of Commissioner Glenn at 997a-1004a. 59 Similarly, parents of mentally retarded children are frequently subject to community pressure to institutionalize their children. Other personal pressures, such as the parents’ own emotional difficulties in dealing with the mentally retarded child, as well as the financial problems of providing necessary care, may cause a parent to institutionalize a mentally retarded child although that course is not in the child’s best interests. Finally, the parents simply may not be aware of less drastic alternatives to institutionalization (1069a, notes omitted). In the case of the mentally retarded and their parents, when the question is institutionalization, there is no identity of interests which may be presumed. The Test in the Danforth Case Accommodates the Interests Involved The decision of the lower court that parents’ and guardians’ interests do not negate the rights of young persons in the mental commitment context is manifest- ly correct.6 Where parents and guardians seek The District Court and defendants approach the issue as one of parental power to “waive” minors’ rights. While the result is the same, plaintiffs do not believe that the constitutional concept of waiver is relevant here. There is no case in which parents have been found to have waived or not to have waived the constitutional rights of their children. Gault discussed the issue of waiver with the Court noting that problems might arise “depending on the age of the chiid and the presence and competence of the parents.” 387 U.S. at 55. See Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968) (issue described but not decided). In plaintiffs’ view, the critical question is whether juveniles can be deprived of their rights where parents and guardians assert (continued) 60 confinement of young persons in mental institutions, there are no significant interests which overcome the right to minimal due process protections. The factual and legal status of parent-child relations in mental commitment is summarized by the District Court in these telling words: There may be instances where the congruence between the parents’ interests and those of the child assure that the parents will arrive at a decision based upon the best interests of the child. The evidence in this case overwhelmingly demon- strates that, due to the substantial potential for conflict between the interests of the parent and the child, this is not such a situation. (footnote continued from preceding page) contrary and divergent rights. As discussed in the text infra, this approach is consistent with that followed by this Court in the parental consent to abortion cases where an inquiry was not made into parental competence to “waive” the rights involved. Should the Court undertake to consider the waiver issue, plaintiffs submit that parental application for state commitment without more cannot be considered a valid waiver of a young person's rights to counsel and an opportunity to be heard. A waiver of constitutional rights must be made “voluntarily, knowingly and intelligently.” Miranda v. Arizona, 384 U.S. 436 (1966). There must be an ‘intentional relinquishment or abandonment’ of a fully known right.” Jn re Gault, 387 U.S. 1, 42, quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938). A valid waiver may not be presumed from the silence of the person involved. Miranda v. Arizona, supra; In re Gault, supra, 387 U.S. at 34. In cases involving juveniles, even apparent waivers have been invalidated. E.g., Haley v. Ohio, 332 U.S. 596, 601 (1948). **Opinion at 1077a (note and citations omitted). As the District Court indicates, id. at n. 44, this case does not present the difficult question of whether parents would have the right to “waive” the constitutional rights of their children, absent seriously con- flicting and divergent interests. 61 The required constitutional analysis refutes defen- dants’ argument that parents must be “in control of the situation” and permitted to waive young persons’ Fourteenth Amendment rights. Brief for Appellants at 38. In Planned Parenthood of Missouri v. Danforth, 428 U.S. 52 (1976), finding a protected liberty interest for minors, the Court proceeded “to examine whether there is any significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult.” Jd. at 75. This is the test which must be applied in the case at bar. A direct and persuasive response to Danforth is that, as demonstrated above, the constitutional interest in freedom from physical confinement without due process admits of no exceptions. No asserted state interest in any previous decision of this Court has overcome this “liberty,” no matter how rehabilitative or treatment-oriented the institution of confinement has been. Those cases, however, did not involve a parent or guardian acting to secure confinement.” The state here, citing no decision of this or any other court, makes a succinct argument that the state’s interest is parental autonomy, expressed by medically- The concurrence of a doctor or hospital in the action is of no constitutional significance under the Danforth test. Under Danforth and Bellotti v. Baird, 428 U.S. 132 (1976), agreement by a doctor to perform a medical procedure does not diminish or negate the asserted constitutional interest (in those cases, the interest of the parents). Further, as the decisions of this and other courts demonstrate, reliance on medical certification to justify mental commitment, absent a hearing and other protections, will not satisfy due process. 62. advised deprivation of young persons’ liberty. Brief for Appellants at 37-38. Such an argument was expressly rejected in Danforth where the young person and parent “are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure.” 428 U.S. at 75. “Any independent interest the parent may have ... is no more weighty than the right ot privacy of the competent minor mature enough to have become pregnant.” /d. Likewise, any parental right to obtain mental health care for a child’! is no more weighty than the liberty right of a child proposed for ™'Mental institutionalization . »u: hardly be considered run-of-the mill general medical care. No court or legislature has ever considered it such. See, e.g., discussion of Pennsylvania legal . history, infra at §11.B., and cases cited at 36-38 supra. The lower court explained: Unlike other kinds of medical treatment, a substantial stigma attaches to institutionalize. This stigma coupled with the substantial danger of error in the diagnosis of mental illness and mental retardation, and the greater potential for long-term loss of liberty create a situation substantially different from the treatment of other parent-child medical conditions. Furthermore, we perceive little or no parent- child conflict in the decision to give or withhold other kinds of medical treatment since a parents’ interests are more likely to be similar to the best interests of the child. 1077a-1078a. To the extent that mental health care is considered similar to other medical care, the right of parents to impose it must be considered in light of the risks to the child. See, e.g., Jehovah's Witnesses in State of Washington v. King County Hospital Unit No. 1 (Harborview), 278 F.Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968), rehearing den., 391 U.S. 961 (1968) (parents sued on “right to decide what medical treatment they will accept for their children;” blood transfusion case). See also cases cited supra at n. 44. 63 institutionalization. It is the “absolute limitation on the minor’s right,” 428 U.S. at 90 (Stewart, J. and Powell, J., concurring), with no provision for “judicial resolution of any disagreement,” id., which causes the greatest risk of harm to the juvenile and involves the least benefit to legitimate state interests. See Bellotti v. Baird, 428 U.S. 132 (1976). Under the Danforth test, a countervailing significant state interest must be established by more than the unsubstantiated declaration of its existence. Carey v. Population Services International, 431 U.S. 678 (1977). Here, the record provides no support whatso- ever for the bare assertion of a “parental autonomy” interest in appellants’ brief. Other possible rationales for differentiating between the rights of young persons and adults are neither asserted by the defendants nor present in these circumstances. 72 The critical question raised by Danforth is not “when rights conflict, which are paramount?” but “when presumed common interests in fact diverge, how can each be accommodated and protected?” There is a For example, the Court has on occasion looked to minors’ vulnerability to harm and their lack of mature judgment in making decisions for themselves. See, Prince v. Massachusetts, 321 U.S. 158, 169 (1944); Ginsberg v. New York, 390 U.S. 629, 636-637, 649-650 (1968); Danforth, supra, 428 U.S. at 102 (Stevens, J., concurring in part and dissenting in part); Carey, supra, 431 U.S. at 693, n. 15. The state interest in assuring emergency mental health care for young persons is protected by the District Court’s denial of a pre- commitment hearing and allowance of temporary detention initiated by parents or guardians without a hearing (800a-801a, 1092a). 64 continuum of decisions made by parents and guardians regarding their wards. At one end are constitutionally trivial and intra-familial issues (what color shirt to wear, what friends to allow into the home) in which there is little, if any, potential harm to the child. Along the continuum, parental! powers are met with limits as their interests and desires diverge from those of young persons, in whom the state has an interest (e.g., compulsory school attendance, vaccinations, First Amendment limits). As the parents’ claims threaten to risk or unduly interfere with the child’s (abortion, blood transfusions), the divergence becomes so great that the parents’ assertion of rights is not permitted to overshadow the social necessity of protecting young persons’ independent interests. At the extreme end of the continuum are actions which society prohibits entirely as between parents and children (incest, physical abuse, neglect).” When viewed in terms of its nature and potential for harm, mental institutionalization—whether the com- mitment is erroneous or not—is an event near the end of the continuum ai a point where the “parental autonomy” claims are properly muted to the extent necessary to protect the “liberty” claims of the child who is being removed from the home and placed in an institution. Therefore, following the reasoning in other cases where the independent rights of minors have been protected in the absence of a guardian with common 73For another extreme situation, in which parents were limited in their right to remove a child from the home, see Respublica v. Keppelle, 2 U.S. 197 (Pa.Sup.Ct.), holding that a parent could not bind a child out as a servant. 65 non-divergent interests,’* the District Court held that 74 See, e.g., cases cited supra at note 44; Jehovah's Witnesses in State of Washington v. King County Hospital Unit No. 1 (Harborview), 278 F.Supp. 488 (W.D. Wash. 1967), aff'd, 390 U.S. 598 (1968), rehearing den., 391 U.S. 961 (1968) (court rejected parental “right to decide what medical treatment they will accept for their children” and “right to decide what medical treatment they will accept for their children” and “right to family privacy” in class action by parents); Marsden v. Commonwealth, 227 N.E.2d 1 (Mass. 1967) (child does not have adequate independent representation from parent where parent is complainant in stubborn child proceeding, although parent may have child’s best interests in mind); A.L. v. G.R.H., 325 N.E.2d 501 (Ind.App. 1975) (parent lacks power to secure sterilization of son, despite sincere belief in benefits of procedure). In a recent case holding that parents may not admit retarded children to a private hospital for sterilization, absent a hearing, the Danforth analysis suggested here was made. Ruby v. Massey, 452 F.Supp. 361 (D. Conn. 1978). A court’s comments in a civil rights suit by institutionalized retarded children illustrates the approach in these cases: I cannot be insensitive to the probability that the interests of the parents may conflict with those of the children residing at the Beatrice State Home. While the parents in all good conscience may desire one remedy, ora specific type or style of treatment for their children, it would not necessarily be in the best interests of the children. Therefore, it seems to me that a discreet course would be to provide for the appoint- ment of a guardian ad litem, who would not displace the parents as representatives of the plaintiffs but would be alert to recognize potential and actual differences in positions asserted by the parents and positions that need to be asserted on behalf of the plaintiffs. Horacek v. Exon, 354 F.Supp. 71, 74 (D. Neb. 1973). This Court has had experience with cases in which the property rights of minors have been protected by representation independent of the guardian. /nsurance Company v. Bangs, 103 U.S. 435 (1880); United States v. Dunn, 268 U.S. 121 (1925); Clarke v. Clarke, 178 U.S. 186, 193-195 (1900). See also United (continued) 66 “parents may not waive the constitutional right of their child not to be deprived of liberty without due process of law.” (1086a).’° D. Reliance Upon Psychiatrists and Other Pro- fessionals to Authorize Commitment is Mis- placed. Although maintaining that parents must be “in control” of the commitment of young persons to mental institutions, defendants point to the “joint decision” by parents and physicians as a fail-safe that sufficiently protects the interests of the plaintiffs. Examination of the relevant law and facts reveals the phantom character of this asserted protection. (footnote continued from preceding page) States v. Equitable Trust Company of New York, 283 U.S. 738 (1931) (in lower courts, one court-appointed guardian acted to protect mentally incompetent person from actions of wife and another court-appointed guardian). 18 Accord, J.L. v. Parham, 412 F.Supp. 112 (M.D. Ga. 1976), prob. juris. noted, 431 U.S. 936 (1977); Kidd v. Schmidt, 399 F.Supp. 301 (E.D. Wis. 1975); Saville v. Treadway, 404 F.Supp. 430 (M.D. Tenn. 1974); In re Long, 25 N.Ca.App. 702, 214 S.E.2d 626 (1975); In re Roger S., 141 Cal.Rptr. 298, 569 P.2d 1268 (S.Ct.Cal. 1977). These issues have been discussed in the literature. Wilson, The Rights of Adolescents in the Mental Health System (1978); Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 Calif. L. Rev. 840 (1974); Teitelbaum & Ellis, op. cit. supra note 51. 67 Mere approval by psychiatrists cannot support a mental health commitment to an institution. See discussion and cases cited at 36-39 supra. Certainly, the state of the art of psychiatry is not such that the confinement of tens of thousands of persons should be left to the judgment of these practitioners.” This field is beset with “uncertainty of diagnosis” and “tentative- ness of professional judgment.” Greenwood v. United States, 350 U.S. 366 (1956); O’Connor v. Donaldson, 422 U.S. 563, 579 (1975) (Burger, C.J., concurring).”’ Mental illness is defined by the user of the term and that definition depends upon the norms employed by the definer: "This case does not involve second-guessing a “medical _ diagnosis” or interference with the provision of standard medical care to juveniles. First, with regard to the retarded, retardation is not a medical problem and is not treated medically. See 979a- 982a; Halderman v. Pennhurst State School and Hospital, supra note 31 (differences between mental illness and mental retardation, and their treatments, described). Second, with regard to both mental retardation and mental illness, it is only when medical and other recommendations result in a deprivation of liberty, non-medical risks and imposition of stigma that, as in the case at bar, the protections of due process are triggered. See note 71 supra. For a detailed review of the literature, see Morse, Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law, 51 S. Calif. L. Rev. 527 (1978). 77One important study showed that diagnoses by psychiatric residents were highly influenced by the imagined socio-economic status of the patient and by the perceived diagnosis of other psychiatrists independent of the clinical picture presented. Lee & Temerlin, Social Class, Diagnosis and Prognosis for Psycho- therapy, in Psychotherapy: Theory, Research and Practice 181 (1970); Ennis & Litwack, Psychiatry and the Presumption of (continued) 68 And, because of the unavoidably ambiguous generalities in which the American Psychiatric (footnote continued from preceding page) Expertise: Flipping Coins in the Courtroom, 62 Calif. L. Rev. 693 (1974) (full review of the literature and legal implications); Beck, Reliability of Psychiatric Diagnoses: A Critique of Systematic Studies, 119 Amer. J. of Psychiatry 210 (1962); Chesler, Women and Madness (1972) (Chapter 2, “Asylums”); Edelman, Inter- Therapist Diagnostic Reliability, 25 J. of Clinical Psychology 394 (1969); Goldberg & Werts, The Reliability of Clinicians’ Judgments: A Multi-Trait—Multi-Method Ap- proach, 30 J. of Consulting Psychology 199 (1966); Katz, Cole & Lowery, Studies of the Diagnostic Process: The Influence of Symptom Perception, Past Experience and Ethnic Background in Diagnostic Decisions, 125 Amer. J. of Psychiatry 937 (1966) (44 experienced psychiatrists viewed a filmed interview with a patient. 17 saw the person as psychotic, 26 saw the patient as non- psychotic. When British and American psychiatrists were compared, the British saw less pathology); Pasamanik, Divity & Lefton, Psychiatric Orientation and Its Relation to Diagnosis and Treatment ir.a Mental Hospital, 116 Amer. J. of Psychiatry 127 (1959); Rosensweig, et al., A Study of the Reliability of the Mental Status Examination, 117 Amer. J. of Psychiatry 1102 1961). | oat as serious obstacles to the diagnostic and therapeutic process arise within the patient, they also arise within the therapist.” Nicholi, The Therapist-Patient Relationship, in Nicholi, The Harvard Guide to Modern Psychiatry 3, 12 (1978). These obstacles, which can become “destructive” to the sensitive relationship between the therapist and the patient or prospective patient, include anxiety within the therapist (which may cause “blind spots” in hearing or understanding the patient’s story), professional insecurity, fatigue, impatience “involving excessive eagerness to make the diagnosis,” inattentiveness, restlessness, daydreaming, inappropriately intense feelings toward the patient. /d. at 12-16. 69 Association describes its diagnostic categories, the diagnostician has the ability to shoehorn into the mentally diseased class almost any person he wishes, for whatever reason, to put there. Livermore, Malmquist & Meehl, On the Justifications for Civil Confinement, 117 U. Pa. L. Rev. 75, 80 (1968).78 The defendants’ extraordinary claim that mental commitments involve no determinative factual ques- tions or disputes flies in the face of every mental commitment decision of this or any other court, the *See, Roth, Dayley & Lerner, Into the Abyss: Psychiatric Reliability and Emergency Commitment Statutes, 13 Santa Clara Law. 400, 403 (1973). More than a hundred years ago a court noted that commitment of children to reform school was based on differing perceptions of “poor parental care:” ... there is not a child in the land who could not be proved, by two or more witnesses, to be in this s2d condition. People ex rel. O'Connell v. Turner, 55 Ill. 280 (1870). The situation is the same today regarding young persons who can be proved to be in the “sad condition” of mental disturbance. See Duehn, The Effect of Practice Orientations on Clinical Assessment, 46 Amer. J. of Orthopsychiatry 629 (1974) (extent of negative mental health labeling is determined, in part, by factors extraneous to patients’ behavior); Rosenhan, The Contextual Nature of Psychiatric Diagnosis, 84 J. Abn. Psychology 462 (1975): Despite the DSM-II’s attempts to elaborate symptomology associa’~d with each disorder, behaviors are too variable and their meanings too dependent on contextual perception for them to be captured under the rubrics proposed by the DSM-II. The very ambiguity of behavior, the fact that its meanings are not automatically transparent, defeats such attempts at classification from the onset, at least within the psychiatric hospital. 70 histories of the named plaintiffs,”? the record in the case,®° and the voluminous medical literature.*! The very existence of “mental illness” and the need foi institutional care are, as the lower court found, facts which are subject to dispute and not amenable to purely medical determination. See Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966). See also, Danforth, supra, 428 U.S. at 104 (Stevens, J., concurring in part and dissenting in part) (“Similarly, even doctors are not omniscient. ... In each individual case factors much more profound than a mere medical judgment may weigh heavily in the scales.”). Institutional psychiatrists are faced with conflicts of interest—with their facilities,*? with their parents and their patients’ families**—and have great difficulty 79What brought each named plaintiff to the institution and what suggested to the parent and professional a need for institutional treatment was not internal disturbances in thought or feeling but external behaviors and expressions which might or might not have actually occurred and which might or might not have a “normal” explanation. See notes 77 and 78 supra; LeBow, Evaluating the Seriousness of Adolescent Adjustment Reactions, 2 Primary Care 281 (1975). See Morse, op. cit. supra note 76. 80 See notes 53-60 supra. 8! See notes 75-78 supra. 82 See testimony of Dr. Messinger at 629a-630a (pressures on psychiatrists to confirm colleagues’ opinions and meet institu- tional needs) and Dr. Ingall at 599a (overcrowded clinics may overrecommend institutionalization). 83 See Scheff, Being Mentally Ill: A Sociological Theory 148- 149 (1966) (commitment is generally automatic where family requests it). Scheff also discusses a case in which a psychiatrist recommended a commiitment for a young person who was not (continued) 71 telling the sane from the insane, tending toward an overdiagnosis of mental illness.** Psychiatry, asked to adjudicate interpersonal and societal conflicts, is often called upon to be the agent of the state’s police powers in ways that carry it beyond its recognized expertise.*5 What is said above for psychiatry and menta! illness is mirrored for mental retardation. The uncontradicted testimony and unchallenged factual findings reflect that “there are many mistakes” in identifying the retarded (981la) through confusion with physical characteristics or handicaps, testing problems, incorrect develop- (footnote continued from preceding page) thought mentaily ill but who was having difficulties with his parents. /d. at 147. Where parents seek commitment of their child, the medical a -hority is forced into a conflict situation: While the goal of the iatrist will be expressed perceived—as the best oe of the child-pationt, it ry - parent who has come to seek help, whose situation seems the most desperate, who seems the most reliable source of information about what is wrong, who is the closest to the psychiatrist in age and social outlook, and who is paying the psychiatrist's fee. Ellis, Volunteering Children, supra note 75, 62 Calif. L. Rev. at 868 (note omitted). This view is confirmed by the expert testimony for all parties. See testimony of Dr. Feiner at 472a, 478a-479a; Dr. Sugar at 381a; Dr. Masterson at 732a-733a; Dr. — at 542a; Dr. Ingall at 593a-594a; Dr. Messinger at 637a- “See Rosenhan, On Being Sane in Insane Places, 13 Santa Clara Law. 379 (1973), discussed in original opinion at 804a, n. 20. Indicative of this approach is the testimony for the defendants by Dr. Masterson who asserted that psychiatrists should first assume that the person before them is mentally ill (739a). See testimony at 737a-738a. 85 See, Bazelon, Forward, Symposium: Mental Iliness, the Law and Civil Liberties, 13 Santa Clara Law. 367 (1973); Szasz, Civil Liberties and the Mentally Ill, 9 Clev-Mar. L. Rev. 399, 407 (1960). 72 mental speculations, and the like (979a-983a, 1068a).*° “{I]n many cases, people grow out of being retarded.” (983a). Therefore, a history of mental retardation is not an infallible indicator or present retardation (982a). Parents of retarded children receive consultation from professionals they consult, typically physicians other than psychiatrists. The physicians’ advice is critical in the decision to institutionalize the child and, tragically, that advice is typically uninformed, without 8¢Mental retardation, by definition, consists of subaverage intellectual performance combined with behavioral maladap- tation (979a). Grossman, ed., Manual on Terminology and Classification in Mental Retardation (1973). An assessment of behavior is thus a sine qua non of a finding of retardation. /d. On the intellectual aspect of the definition, serious questions have been raised regarding the accuracy of the tests used. See, e.g., Mercer, Labeling the Mentally Retarded (1973). Erroneous diagnoses of mental retardation are not unusual. See Meno- lascino, Emotional Disturbance and Mental Retardation, 70 Amer. J. of Mental Deficiency 248 (1965). A web of circumstance, not intellectual functioning level, determines who is committed and who is not: Q. Well, isn’t there, as I think many people believe, some relationship between a person's IQ or level of retardation and whether or not they are found in an institution? A. No, notatall. The people you find in institutions 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.* * * It is circumstantial as to whether or not they have ended up in institutions. Testimony of Commissioner Glenn at 980a-98la. Factual disputes arise in grounds asserted as the basis for commitment of the retarded (998a). 73 reasonable basis, and inappropriately and excessively oriented toward institutionalization.®’ In some ways more than in the mental health area, mental retardation professionals who work in institu- tions are subject to pressures and conflicts of interest which make it impossible for them to independently evaluate people’s need for commitment.** This occurs *’ Literature collected in Teitelbaum & Ellis, op. cit. supra note 51. See Turnbull & Turnbull, eds., Parents Speak Out: Views from the Other Side of the Two-Way Mirror (1978) (accounts by retarded children’s parents who are mental retardation profes- sionals themselves); Kelly & Menolascino, Physicians’ Aware- ness and Attitudes Toward the Retarded, 13 Mental Retardation 10 (1975); Testimony of Commissioner Glenn at 1004a, 1009a. *8Several pressures and conflicts are described in Com- missioner Glenn’s testimony at 1007a-1008a: First, there is a basic conflict of interest for somebody in the institution to make a decision about whether or not a person ought to go to that institution. That would be sort of like a store owner deciding whether or not a customer ought to come into his store or somebody else’s store. Institutions, as I indicated earlier, are sort of —s to prove their necessity and justify their existence. All the research in the st 35 years has shown that institutions are not appropriate or the developmental growth of mentally retarded persons, but there are a lot of people that continue to try to justify their existence and the only way they can do that is by having a a. With the move Federally and by states and professions that recognize the inadequacy of this historic institutionalization having a dramatic move toward deinstitutionalization, there is a real conflict where institutions have to have people to prove they should still be around. Another reason is the institutions, in the vast majority of cases, if not all the cases, would be ignorant of the other alternatives to someone being placed in their institution. Their responsibilities, obviously, would be the operation of that particular program. Also, the staffs of institutions by the very fact that they work there, think that they are doing the right thing, think (continued) 74 “regardless of the goodwill or good faith of the institutional staff.” (1008a). Psychologists, social workers, educators, and various social agencies often recommend institutionalization even though they may be aware that other alternatives would be more appropriate (1009a-1010a). Overcrowded clinics “very often” overrecommend institutionalization of the retarded (1010a). E. The Requisites of Due Process. The requirements of due process are flexible and depend upon an evaluation of the effect of government action on the private interest involved and of the risks and value of alternative procedures, as well as consideration of the government'’s interest. Cafeteria Workers Union v. McElroy, 367 U.S. 886, 895 (1961); (footnote continued from preceding page) that they are the best place for people, and so everybody gets ego involved in what they are doing and have been doing for years and think only they can do the right job. 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 a person has to be brought into the institution and se by their staff and protected in that type of environment or the staffs wouldn't necessarily work there. See testimony at 1008a (“superintendents start sneaking people in, to make sure they can get the same amount of money next year, same census on the rolls. . . .”). 75 Mathews v. Eldridge, 424 U.S. 319, 335 (1976).89 Notice, counsel and an opportunity to be heard are fundamental requirements where a deprivation of personal liberty—for whatever reason—is involved. E.g., Specht v. Patterson, 386 U.S. 605 (1967); Baxstrom v. Herold, 383 U.S. 107 (1966); In re Gault, 387 U.S. 1 (1967). The limits of the process found due by the lower court deserve renewed emphasis at this point. With the exception of notice of prolonged commitment and counsel or other trained representative, all rights may be waived, including presence at any hearings. It is expected that hearings will not be required in every case; a large number of hearings will be waived.9' The forum for hearings which are held would be an “impartial tribunal” where the perspective and con- 8°Mathews v. Eldridge requires consideration of three concerns: 1. The private interest that will be affected by the official action. The right to be free from confinement in an institution and the consequences of such confinement—whether erroneous or not—have already been discussed. 2. The risk of erroneous deprivation through the procedures used and the probable value of substitute procedures. The inherently substantial risk of error in reliance on parental or professional decision-making is discussed above. The value of substitute procedures is discussed in this section of the brief. 3. The government's interest, including fiscal and adminis- trative burdens, is discussed in this section cf the brief. *See discussion supra at 19-21. %'\]Id. See 81la, n. 26. 76 cerns of the parents or guardians could be fully aired.” Many states provide hearings for young persons facing commitment.? Seven states make no distinc- tions among age groups in their commitment laws: Alabama, Alaska, Connecticut, Minnesota, Nebraska, New Hampshire and Virginia. Florida makes no 2The process is consistent with that urged by Professor John P. Wilson, Associate Dean, Boston University School of Law, in his new volume, The Rights of Adolescents in the Mental Health System 222-223 (1978): In view of this situation, due process seems to demand procedures which can be invoked by interested parties but which for the most part are not automatically applied in every admission. Where no one, including the child, objects to the arrangements being made, there seems no reason to disrupt the parent-child relationship beyond a review of the ood faith and informed consent of all competent parties involved and periodic review of the need for hospitalization and treatment. On the other hand, in view of the possible abuses of the voluntary admission process and the growing independence and maturity of a juvenile child, procedures should be available to the need for admission whenever that child or another interested party raises an objection. One method of accomplishing this delicate task would be to inject an independent third party into the situation—an advisor and advocate for the child whose presence and assistance could not be waived by the parents. This person would counsel the child, and if the child then objected to admission or was incompetent to consent to admission, would represent him or her in a hearing, probably before a multidisciplinary review board. Ultimate appeal to a court would be possible. The review board would be responsible for either authorizing or denying admission once an objection was raised. Thus in contested cases this board would effectively perform the decision-making function now performed, in most states, solely by parents and an admitting physician. Wilson, op. cit. supra note 75, Appendix B, 301-308. The state-by-state information in the text is summarized from this appendix. 77 mention of parental authority to commit pers 12. In three states, Rhode Island, nit aad Tene the minor must consent to the commitment. In lowa, South Dakota and Montana, an objecting minor receives a hearing, as do objecting minors 13 and older in Michigan. In Illinois and Montana, court approval is required for extended commitment, whether the minor objects or not (as noted previously, an objecting Montana minor receives a hearing). In the 35 other States, statutes require parents or guardians to consent to institutionalization.% The record in this case and the findings of the lower court support a number of important practical observations concerning the need for and functions of commitment hearings for young persons. Opportunity for a hearing for juveniles is proper and necessary in non-emergency situations.°5 Because of their immaturity and lack of experience, it iseven more important that juveniles receive the protection of a hearing than adults.% Assistance of counsel is essential and can help treatment of juveniles; in no significant way could it hinder such treatment.9’ As the lower Two of those states, California and Wisconsin, have had their statutes invalidated, in whole or in part, by recent litigation. See note 75 supra. | % See testimony of Dr. Kandler at 542a-545a, 566a, 571a-572a $73a-574a; Dr. Ingall at 596a-597a, 606a; Dr. Messinger at 622a. 623a, 625a, 630a-63la; Dr. Feiner at 479a-480a; Commissioner Glenn at 101 la. % See testimony of Dr. Kandler at 562a; Dr. Ingall ; Dr. t 589a- 590a; Dr. Messinger at 630a-631a. ae ee *” See testimony of Dr. Kandler at 542a-543a: Dr. I} ; - ; Dr. ll 597a; Dr. Messinger at 633a. si sete 78 court found, a hearing would not be unduly traumatic for juveniles and would not interfere with treatment or the parent-child relation; to the contrary, a hearing would encourage more appropriate resolution of problems and would have positive and beneficial effects on the child and his or her parents.** See Jn re Gault, supra, 387 U.S. at 26.% Establishment of a due process impartial forum fora decision to institutionalize lifts the heavy responsi- bility from the parents! and reduces the possibility that the therapist will be seen by the juvenile as an adverse party.'°' A hearing does not interfere with therapy and has the further effect of encouraging a juvenile’s cooperation with a treatment plan.'? The opportunity for hearings would not discourage people from seeking treatment for juveniles (although it would, no doubt, deter unwarranted applications) but would result in agencies and professionals performing more effectively, the avoidance of the necessity for hearings, reduced use of institutionalization, and the %Opinion at 108la-1082a. See testimony of Dr. Kandler at 543a-545a, 565a-566a, 574a; Dr. Ingall at 591a, 596a-597a, 61 la- 613a; Commissioner Glenn at 1012a, 1013a-1015a, 1024a-1025a. Dr. Feiner testified that “... it has been said that some children would rather be fair than be loved. So, there is a sense that a judicial hearing responds to in children” (483a). See testimony of Dr. Messinger at 624a. Testimony of Dr. Feiner at 48 1a, 495a; Commissioner Glenn at 1013a-1014a. ''Testimony of Dr. Messinger at 624a-625a; Dr. Ingall at 612a-613a. '02Testimony of Dr. Kandler at 561a, 574a; Dr. Ingall at 597a; Dr. Messinger at 633a. 79 provision of more appropriate care in particular cases, !93 . Notice. Turning to the specific procedural protec- tions recognized by the lower court, the first is notice of a commitment which is to last longer than three days. Without advance notice, the fundamental “right to be heard has little significance.”! In mental commit- ment cases, notice is at least as essential, if not more so, than in proceedings which do not result in deprivation of liberty. Cf., Goldberg v. Kelly, 397 U.S. 254 (1970). Where a proceeding will be held which will determine whether a person is indeterminately and involuntarily institutionalized, advance notice is imperative. The speculative fear of an unspecified trauma flowing from notice cannot justify abandonment of this first step in providing a process which is due under the circumstances. Jn re Gault, supra. In its comprehensive study, the American Bar Foundation noted: The humanitarian desire to eliminate or curtail the use of notice in such cases raises certain questions, however. It may be, for example, that the experience of receiving notice would prove no more traumatic for the patient than the experience of suddenly finding himself detained in a mental institution. !5 13 See testimony of Dr. Kandler at 574a; Dr. Messinger at 638a-640a; Dr. Feiner at 494a-495a; Commissioner Glenn at 1014a-1015a. '*Opinion at 802a, citing, inter alia, Grannis v. Ordean, 234 U.S. 385, 394 (1914); In re Gault, 387 U.S. 1 (1967); Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). '0SAmerican Bar Foundation (Brakel & Rock, eds.), The Mentally Disabled and the Law 51 (1971). “Since effective notice is a prerequisite to the exercise of an individual’s other due (continued) 80 Counsel. In criminal proceedings, Argersinger v. Hamlin, 407 U.S. 25 (1972), and in juvenile proceed- ings, Jn re Gault, supra, the guiding hand of counsel is a right which assures that no person is deprived of liberty without the aid of an expert able to “cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings and to ascertain whether he has a defense and to prepare and submit it.” Jn re Gault, supra, 387 U.S. at 36. The lower court recognized that it “may not always be necessary to appoint a lawyer so long asa substitute (footnote continued from preceding page) process rights, mandatory notice should itself be a requirement of due process” in mental health cases. Note, Developments in the Law— Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1274-1275 (1974) (notes omitted). Eighty years ago, in a landmark and often-cited case, the Kansas Court of Appeals explained the logic of requiring notice in mental commitment proceedings: Notice and opportunity to be heard lie at the foundation of all judicial procedures. They are fundamenial principles of justice which cannot be ignored . . . it will not do to say that it is useless to serve notice on an insane person; that it would avail nothing because of his inability to take advantage of it. His sanity is the very thing to be tried. In re Wellman, 3 Kan. App. 100, 103, 45 P. 726, 727 (1896). Consider how differently the commitment of Edward B. would have been had he been given notice under the court’s order. Rather than arriving at the institution and being informed that he would be there indefinitely, after being “tricked” by his parents into coming and after being made to feel “like a prisoner,” he would have been told that, if he had to stay longer than a few days, he would have a lawyer or other representative to help him out and that he could have a chance to tell his side of the story toa neutral party. The positive effect on Edward B.—and the plaintiff class as a whole—is readily apparent. procedure adequately protects the child’s interest,” for example, a guardian who might, if necessary, “have the power to retain a lawyer.” (1079a, n. 47). This flexi- bility permits informality and allows a minimum of legal technicality while assuring that, where legal expertise is essential, it is provided. Mandatory appointment of counsel or other trained representative in juvenile commitments assures that a child has the full support necessary to avoid pressures of family and institutions and provides assistance in making the critical decision whether to waive an evidentiary hearing. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962); Haley v. Ohio, 332 U.S. 596, 599- 601 (1948); Harris, Mental Illness, Due Process and Lawyers, 55 A.B.A.J. 65 (1969) (noting danger that young persons will be induced to commit themselves to mental institutions unless their rights are explained to them by lawyers). With parents, doctors and institu- tional staff all urging commitment, and with no independent confidant and advisor, it is impossible to expect a child to make an “intentional relinquishment or abandonment” of a fully known right. Johnson vy. Zerbst, 304 U.S. 458, 464 (1938). Where the young person is unable to comprehend exactly what is happening, appointment of a conflict-free advocate is even more essential. See, e.g., testimory of Com- missioner Glenn at 1019a-1020a. Hearing. Balancing the young person’s liberty interest in a pre-