|Parham v. J.R.
[ Burger ]
[ Stewart ]
[ Brennan ]
Parham v. J.R.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR JUSTICE STEVENS join, concurring in part and dissenting In part.
I agree with the Court that the commitment of juveniles to state mental hospitals by their parents or by state officials acting in loco parentis involves state action that impacts upon constitutionally protected interests, and therefore must be accomplished through procedures consistent with the constitutional mandate of due process of law. I agree also that the District Court erred in interpreting the Due Process Clause to require pre-confinement commitment hearings in all cases in which parents wish to hospitalize their children. I disagree, however, with the Court's decision to pretermit questions concerning the post-admission procedures due Georgia's institutionalized juveniles. While the question of the frequency of post-admission review hearings may properly be deferred, the [p626] right to at least one post-admission hearing can and should be affirmed now. I also disagree with the Court's conclusion concerning the procedures due juvenile wards of the State of Georgia. I believe that the Georgia statute is unconstitutional in that it fails to accord pre-confinement hearings to juvenile wards of the State committed by the State acting in loco parentis.
RIGHTS OF CHILDREN COMMITTED TO MENTAL INSTITUTIONS
Commitment to a mental institution necessarily entails a "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509 (1972), and inevitably affects "fundamental rights." Baxstrom v. Herald, 383 U.S. 107, 113 (1966). Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the continuous and detailed control of strangers. They are subject to intrusive treatment which, especially if unwarranted, may violate their right to bodily integrity. Such treatment modalities may include forced administration of psychotropic medication, [n1] aversive conditioning, [n2] convulsive therapy, [n3] and even psychosurgery. [n4] Furthermore, as the Court recognizes, see ante at 600, persons confined in mental institutions are stigmatized as [p627] sick and abnormal during confinement and, in some cases, even after release. [n5]
Because of these considerations, our cases have made clear that commitment to a mental hospital "is a deprivation of liberty which the State cannot accomplish without due process of law." O'Connor v. Donaldson, 422 U.S. 563, 580 (1975) (BURGER, C.J., concurring). See, e.g., McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972) (defective delinquent commitment following expiration of prison term); Specht v. Patterson, 386 U.S. 605 (1967) (sex offender commitment following criminal conviction); Chaloner v. Sherman, 242 U.S. 455, 461 (1917) (incompetence inquiry). In the absence of a voluntary, knowing, and intelligent waiver, adults facing commitment to mental institutions are entitled to full and fair adversary hearings in which the necessity for their commitment is established to the satisfaction of a neutral tribunal. At such hearings, they must be accorded the right to
be present with counsel, have an opportunity to be heard, be confronted with witnesses against [them], have the right to cross-examine, and to offer evidence of [their] own.
Specht v. Patterson, supra at 610.
These principles also govern the commitment of children.
Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution. and possess constitutional rights. See, e.g., Breed v. Jones, 421 U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969); In re Gault, 387 U.S. 1 (1967).
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976).
Indeed, it may well be argued that children are entitled to more protection than are adults. The consequences of an erroneous commitment decision are more tragic where children [p628] are involved. Children, on the average, are confined for longer periods than are adults. [n6] Moreover, childhood is a particularly vulnerable time of life, [n7] and children erroneously institutionalized during their formative years may bear the scars for the rest of their lives. [n8] Furthermore, the provision of satisfactory institutionalized mental care for children generally requires a substantial financial commitment [n9] that too often has not been forthcoming. [n10] Decisions of the lower courts have chronicled the inadequacies of existing mental health facilities for children. See, e.g., New York State Assn. for Retarded Children v. Rockefeller, 357 F.Supp. 752, 756 (EDNY 1973) (conditions at Willowbrook School for the Mentally Retarded are "inhumane," involving "failure to protect the physical safety of [the] children," substantial personnel shortage, and "poor" and "hazardous" conditions); Wyatt v. Stickney, 344 F.Supp. 387, 391 (MD Ala.1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (CA5 1974) ("grossly substandard" conditions at Partlow School for the Mentally Retarded lead to "hazardous and deplorable inadequacies in the institution's operation"). [n11]
In addition, the chances of an erroneous commitment [p629] decision are particularly great where children are involved. Even under the best of circumstances, psychiatric diagnosis and therapy decisions are fraught with uncertainties. See O'Connor v. Donaldson, supra at 584 (BURGER, C.J., concurring). These uncertainties are aggravated when, as under the Georgia practice, the psychiatrist interviews the child during a period of abnormal stress in connection with the commitment, and without adequate time or opportunity to become acquainted with the patient. [n12] These uncertainties may be further aggravated when economic and social class separate doctor and child, thereby frustrating the accurate diagnosis of pathology. [n13]
These compounded uncertainties often lead to erroneous commitments, since psychiatrists tend to err on the side of medical caution, and therefore hospitalize patients for whom other dispositions would be more beneficial. [n14] The National Institute of Mental Health recently found that only 36 of patients below age 20 who were confined at St. Elizabeths Hospital actually required such hospitalization. [n15] Of particular relevance to this case, a Georgia study Commission on Mental Health Services for Children and Youth concluded that more than half of the State's institutionalized children were not in need of confinement if other forms of care were made available or used. Cited in J.L. v. Parham, 412 F.Supp. 112, 122 (MD Ga.1976). [p630]
Notwithstanding all this, Georgia denies hearings to juveniles institutionalized at the behest of their parents. Georgia rationalizes this practice on the theory that parents act in their children's best interests, and therefore may waive their children's due process rights. Children incarcerated because their parents wish them confined, Georgia contends, are really voluntary patients. I cannot accept this argument.
In our society, parental rights are limited by the legitimate rights and interests of their children.
Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.
Prince v. Massachusetts, 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children [n16] and that, inter alia, curtail parental authority to alienate their children's property, [n17] to withhold necessary medical treatment, [n18] and to deny children exposure to ideas [p631] and experiences they may later need as independent and autonomous adults. [n19]
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor's right to secure an abortion on attaining her parents' consent, since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 75.
This case is governed by the rule of Danforth. The right to be free from wrongful incarceration, physical intrusion, and stigmatization has significance for the individual surely as great as the right to an abortion. Moreover, as in Danforth, the parent-child dispute at issue here cannot be characterized as involving only a routine childrearing decision made within the context of an ongoing family relationship. Indeed, Danforth involved only a potential dispute between parent and child, whereas here a break in family autonomy has actually resulted in the parents' decision to surrender custody of their child to a state mental institution. In my view, a child who has been ousted from his family has even greater need for an independent advocate.
Additional considerations counsel against allowing parents unfettered power to institutionalize their children without [p632] cause or without any hearing to ascertain that cause. The presumption that parents act in their children's best interests, while applicable to most childrearing decisions, is not applicable in the commitment context. Numerous studies reveal that parental decisions to institutionalize their children often are the results of dislocation in the family unrelated to the children's mental condition. [n20] Moreover, even well-meaning parents lack the expertise necessary to evaluate the relative advantages and disadvantages of inpatient, as opposed to outpatient, psychiatric treatment. Parental decisions to waive hearings in which such questions could be explored, therefore, cannot be conclusively deemed either informed or intelligent. In these circumstances, I respectfully suggest, it ignores reality to assume blindly that parents act in their children's best interests when making commitment decisions and when waiving their children's due process rights.
This does not mean States are obliged to treat children who are committed at the behest of their parents in precisely the same manner as other persons who are involuntarily committed. The demands of due process are flexible and the parental commitment decision carries with it practical implications that States may legitimately take into account. While, as a general rule, due process requires that commitment hearings precede involuntary hospitalization, when parents seek to hospitalize their children, special considerations militate in favor of postponement of formal commitment proceedings and against mandatory adversary pre-confinement commitment hearings. [p633]
First, the prospect of an adversary hearing prior to admission might deter parents from seeking needed medical attention for their children. Second, the hearings themselves might delay treatment of children whose home life has become impossible and who require some form of immediate state care. Furthermore, because adversary hearings at this juncture would necessarily involve direct challenges to parental authority, judgment, or veracity, pre-admission hearings may well result in pitting the child and his advocate against the parents. This, in turn, might traumatize both parent and child and make the child's eventual return to his family more difficult.
Because of these special considerations, I believe that States may legitimately postpone formal commitment proceedings when parents seek inpatient psychiatric treatment for their children. Such children may be admitted, for a limited period, without prior hearing, so long as the admitting psychiatrist first interviews parent and child and concludes that short-term inpatient treatment would be appropriate.
Georgia's present admission procedures are reasonably consistent with these principles. See ante at 613-616. To the extent the District Court invalidated this aspect of the Georgia juvenile commitment scheme and mandated pre-confinement hearings in all cases, I agree with the Court that the District Court was in error.
I do not believe, however, that the present Georgia juvenile commitment scheme is constitutional in its entirety. Although Georgia may postpone formal commitment hearings, when parents seek to commit their children, the State cannot dispense with such hearings altogether. Our cases make clear that, when protected interests are at stake, the "fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.'" Mathews [p634] v. Eldridge, 424 U.S. 319, 333 (1976), quoting in part from Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Whenever prior hearings are impracticable, States must provide reasonably prompt post-deprivation hearings. Compare North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975), with Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974).
The informal post-admission procedures that Georgia now follows are simply not enough to qualify as hearings -- let alone reasonably prompt hearings. The procedures lack all the traditional due process safeguards. Commitment decisions are made ex parte. Georgia's institutionalized juveniles are not informed of the reasons for their commitment; nor do they enjoy the right to be present at the commitment determination, the right to representation, the right to be heard, the right to be confronted with adverse witnesses, the right to cross-examine, or the right to offer evidence of their own. By any standard of due process, these procedures are deficient. See Wolff v. McDonnell, 418 U.S. 539 (1974); Morrissey v. Brewer, 408 U.S. 471 (1972); McNeil v. Director, Patuxent Institution, 407 U.S. 245 (1972); Specht v. Patterson, 386 U.S. at 610. See also Goldberg v. Kelly, 397 U.S. 254, 269-271 (1970). I cannot understand why the Court pretermits condemnation of these ex parte procedures which operate to deny Georgia's institutionalized juveniles even "some form of hearing," Mathews v. Eldridge, supra at 333, before they are condemned to suffer the rigors of long-term institutional confinement. [n21]
The special considerations that militate against pre-admission [p635] commitment hearings when parents seek to hospitalize their children do not militate against reasonably prompt post-admission commitment hearings. In the first place, post-admission hearings would not delay the commencement of needed treatment. Children could be cared for by the State pending the disposition decision.
Second, the interest in avoiding family discord would be less significant at this stage, since the family autonomy already will have been fractured by the institutionalization of the child. In any event, post-admission hearings are unlikely to disrupt family relationships. At later hearings, the case for and against commitment would be based upon the observations of the hospital staff and the judgments of the staff psychiatrists, rather than upon parental observations and recommendations. The doctors urging commitment, and not the parents, would stand as the child's adversaries. As a consequence, post-admission commitment hearings are unlikely to involve direct challenges to parental authority, judgment, or veracity. To defend the child, the child's advocate need not dispute the parents' original decision to seek medical treatment for their child, or even, for that matter, their observations concerning the child's behavior. The advocate need only argue, for example, that the child had sufficiently improved during his hospital stay to warrant outpatient treatment or outright discharge. Conflict between doctor and advocate on this question is unlikely to lead to family discord.
As a consequence, the prospect of a post-admission hearing is unlikely to deter parents from seeking medical attention for their children, and the hearing itself is unlikely so to traumatize parent and child as to make the child's eventual return to the family impracticable.
Nor would post-admission hearings defeat the primary purpose of the state juvenile mental health enterprise. Under the present juvenile commitment scheme, Georgia parents do not enjoy absolute discretion to commit their [p636] children to public mental hospitals. See ante at 614-615. Superintendents of state facilities may not accept children for long-term treatment unless they first determine that the children are mentally ill and will likely benefit from long-term hospital care. See ibid. If the superintendent determines either condition is unmet, the child must be released or refused admission, regardless of the parents' desires. See ibid. No legitimate state interest would suffer if the superintendent's determinations were reached through fair proceedings with due consideration of fairly presented opposing viewpoints, rather than through the present practice of secret, ex parte deliberations. [n22]
Nor can the good faith and good intentions of Georgia's psychiatrists and social workers, adverted to by the Court, see ante at 442 U.S. 615"]615-616, excuse Georgia's ex parte procedures. Georgia's admitting psychiatrists, like the school disciplinarians described in 615-616, excuse Georgia's ex parte procedures. Georgia's admitting psychiatrists, like the school disciplinarians described in Goss v. Lopez, 419 U.S. 565 (1975),
although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed.
Id. at 580. See App. 188-190, testimony of Dr. Messinger. Here, as in Goss, the
risk of error is not at all trivial, and it should be guarded against if that may be done without prohibitive cost or interference with the . . . process. . . . "[F]airness can rarely be obtained by secret, one-sided determination [p637] of facts decisive of rights. . . ." "Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it."
Goss v. Lopez, supra at 580, quoting in part from Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170, 171-172 (1951) (Frankfurter, J., concurring).
RIGHTS OF CHILDREN COMMITTED BY THEIR STATE GUARDIANS
Georgia does not accord prior hearings to juvenile wards of the State of Georgia committed by state social workers acting in loco parentis. The Court dismisses a challenge to this practice on the grounds that state social workers are obliged by statute to act in the children's best interest. See ante at 619.
I find this reasoning particularly unpersuasive. With equal logic, it could be argued that criminal trials are unnecessary, since prosecutors are not supposed to prosecute innocent persons.
To my mind, there is no justification for denying children committed by their social workers the prior hearings that the Constitution typically requires. In the first place, such children cannot be said to have waived their rights to a prior hearing simply because their social workers wished them to be confined. The rule that parents speak for their children, even if it were applicable in the commitment context, cannot be transmuted into a rule that state social workers speak for their minor clients. The rule in favor of deference to parental authority is designed to shield parental control of child rearing from state interference. See Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). The rule cannot be invoked in defense of unfettered state control of child rearing or to immunize from review the decisions of state social workers. [p638] The social worker-child relationship is not deserving of the special protection and deference accorded to the parent-child relationship, and state officials acting in loco parentis cannot be equated with parents. See O'Connor v. Donaldson, 422 U.S. 563 (1975); Wisconsin v. Yoder, 406 U.S. 205 (1972).
Second, the special considerations that justify postponement of formal commitment proceedings whenever parents seek to hospitalize their children are absent when the children are wards of the State and are being committed upon the recommendations of their social workers. The prospect of pre-admission hearings is not likely to deter state social workers from discharging their duties and securing psychiatric attention for their disturbed clients. Moreover, since the children will already be in some form of state custody as wards of the State, pre-hospitalization hearings will not prevent needy children from receiving state care during the pendency of the commitment proceedings. Finally, hearings in which the decisions of state social workers are reviewed by other state officials are not likely to traumatize the children or to hinder their eventual recovery.
For these reasons, I believe that, in the absence of exigent circumstances, juveniles committed upon the recommendation of their social workers are entitled to pre-admission commitment hearings. As a consequence, I would hold Georgia's present practice of denying these juveniles prior hearings unconstitutional.
Children incarcerated in public mental institutions are constitutionally entitled to a fair opportunity to contest the legitimacy of their confinement. They are entitled to some champion who can speak on their behalf and who stands ready to oppose a wrongful commitment. Georgia should not be permitted to deny that opportunity and that champion simply because the children's parents or guardians wish them [p639] to be confined without a hearing. The risk of erroneous commitment is simply too great unless there is some form of adversary review. And fairness demands that children abandoned by their supposed protectors to the rigors of institutional confinement be given the help of some separate voice.
1. See Winters v. Miller, 446 F.2d 65 (CA2), cert. denied, 404 U.S. 985 (1971); Scott v. Plante, 532 F.2d 939 (CA3 1976); Souder v. McGuire, 423 F.Supp. 830 (MD Pa.1976).
2. See Knecht v. Gillman, 488 F.2d 1136 (CA8 1973); Mackey v. Procunier, 477 F.2d 877 (CA9 1973).
3. See Wyatt v. Hardin, No. 3195-N (MD Ala., Feb. 28, June 26, and July 1, 1975); Price v. Sheppard, 307 Minn. 250, 239 N.W.2d 905 (1976); Nelson v. Hudspeth, C.A. No. J75-40 (R) (SD Miss., May 16, 1977).
4. See Kaimowitz v. Michigan Dept. of Mental Health, 42 U.S.L.W. 2063 (Cir.Ct.Wayne Cty., Mich., 1973).
5. See generally Note, Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1200 (1974).
6. See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 90, Utilization of Psychiatric Facilities by Persons 18 Years of Age, Table 8, p. 14 (July 1973).
7. See J. Bowlby, Child Care and the Growth of Love 80 (1953); J. Horrocks, The Psychology of Adolescence 156 (1976); F. Elkin, Agents of Socialization in Children's Behavior 357, 360 (R. Bergman ed.1968).
8. See B. Flint, The Child and the Institution 14-15 (1966); H. Leland & D. Smith, Mental Retardation: Present and Future Perspectives 86 (1974); N. Hobbs, The Futures of Children 142-143 (1975).
9. See Joint Commission on Mental Health of Children, Crisis in Child Mental Health: Challenge for the 1970's, p. 271 (1969).
10. See R. Kugel & W. Wolfensberger, Changing Patterns in Residential Services for the Mentally Retarded 22 (1969).
11. See also Wheeler v. Glass, 473 F.2d 983 (CA7 1973); Davis v. Watkins, 384 F.Supp. 1196 (ND Ohio 1974); Welsch v. Likins, 373 F.Supp. 487 (Minn.1974).
12. See J. Simmons, Psychiatric Examination of Children 1, 6 (1974); Lourie & Rieger, Psychiatric and Psychological Examination of Children, in 2 American Handbook of Psychiatry 19 (2d ed 1974).
13. See Joint Commission on Mental Health of Children, supra, n. 9, at 267.
14. See T. Scheff, Being Mentally Ill: A Sociological Theory (1966); Ennis & Litwack, Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 Calif.L.Rev. 693 (1974).
15. See Dept. of HEW, National Institute of Mental Health, Biometry Branch, Statistical Note 115, Children and State Mental Hospitals 4 (Apr.1975).
16. See generally S. Katz, When Parents Fail (1971); M. Midonick & D. Besharov, Children, Parents and the Courts: Juvenile Delinquency, Ungovernability, and Neglect (1972); Wald, State Intervention on Behalf of "Neglected" Children: A Search for Realistic Standards, 27 Stan.L.Rev. 985 (1975).
17. See, e.g., Martorell v. Ochoa, 276 F. 99 (CA1 1921).
18. See, e.g., Jehovah's Witnesses v. King County Hospital, 278 F.Supp. 488 (WD Wash.1967), aff'd, 390 U.S. 598 (1968); In re Sampson, 65 Misc.2d 658, 317 N.Y.S.2d 641 (Fam.Ct.Ulster County, 1970), aff'd, 37 App.Div.2d 668, 323 N.Y.S.2d 253 (1971), aff'd, 29 N.Y.2d 900, 278 N.E.2d 918 (1972); State v. Perricone, 37 N.J. 463, 181 A.2d 751 (1962). Similarly, more recent legal disputes involving the sterilization of children have led to the conclusion that parents are not permitted to authorize operations with such far-reaching consequences. See, e.g., A.L. v. G.R.H., 163 Ind.App. 636, 325 N.E.2d 501 (1975); In re M.K.R., 515 S.W.2d 467 (M.1974); Frazier v. Levi, 440 S.W.2d 393 (Tex.Civ.App. 1969).
19. See Commonwealth v. Renfrew, 332 Mass. 492, 126 N.E.2d 109 (1955); Meyerkorth v. State, 173 Neb. 889, 115 N.W.2d 585 (1962), appeal dism'd, 372 U.S. 705 (1963); In re Weberman, 198 Misc. 1055, 100 N.Y.S.2d 60 (Sup.Ct.1950), aff'd, 278 App.Div. 656, 102 N.Y.S.2d 418, aff'd, 302 N.Y. 855, 100 N.E.2d 47, appeal dism'd, 342 U.S. 884 (1951).
20. Murdock, Civil Rights of the Mentally Retarded: Some Critical Issues, 48 Notre Dame Law. 133, 138 (1972); Vogel & Bell, The Emotionally Disturbed Child as the Family Scapegoat, in a Modern Introduction to the Family 412 (1968).
21. The National Institute of Mental Health has reported:
[T]housands upon thousands of elderly patients now confined on the back wards of . . . state [mental] institutions were first admitted as children thirty, forty, and even fifty years ago. A recent report from one state estimates that one in every four children admitted to its mental hospitals "can anticipate being permanently hospitalized for the next 50 years of their lives."
Joint Commission on Mental Health of Children, supra, n. 9, at 5.
22. Indeed, post-admission hearings may well advance the purposes of the state enterprise. First, hearings will promote accuracy and ensure that the superintendent diverts children who do not require hospitalization to more appropriate programs. Second, the hearings themselves may prove therapeutic. Children who feel that they have received a fair hearing may be more likely to accept the legitimacy of their confinement, acknowledge their illness, and cooperate with those attempting to give treatment. This, in turn, would remove a significant impediment to successful therapy. See Katz, The Right to Treatment -- An Enchanting Legal Fiction?, 36 U.Chi.L.Rev. 755, 76769 (1969); O'Connor v. Donaldson, 422 U.S. 563, 579 (1975) (BURGER, C.J., concurring).