Bartley v. Kremens

cordingly, the ease is dismissed

International.9

Relief injunc requested Plaintiff position It is the Court’s

tive relief. unnecessary injunction that an by a served can be that the same ends declaratory Accordingly, judgment. proposed

plaintiff form to submit a declaratory judgment consistent appear opinion. it later this Should necessary, injunctive relief appro then take Court would

priate action. et

Kevin BARTLEY al. KREMENS, Individually

Jack B. and as Hospital Director Haverford State Hospital, et al. A.

Civ. No. 72-2272. Court,

United States District Pennsylvania. E. D.

July 24, 1975. 15,1975.

Stay Granted Dec.

See 96 S.Ct. 558. Opinion drafted, plain- 9. After had been clines to do so. The International is dis- prejudice. tiff moved dismiss the International missed .with party prejudice. without The Court de-

ÍQ41 Ferleger, Pa., Philadelphia, David plaintiffs. Atty.

Barry Deputy Gen., Roth, A. Pa., Harrisburg, for defendants. GIBBONS, Judge, Before Circuit and BRODERICK, HUYETT and Judges. District AND ORDER OPINION Judge. HUYETT, District Plaintiffs have filed this class action1 plaintiffs on of the named and all behalf years age persons eighteen young- or been, are, may or be er who have admit- ted or committed mental health facili- Pennsyl- Pennsylvania ties in under the Retar- vania and Mental Mental Health (Act). 4402 and dation Act 50 P.S. §§ Invoking 403).2 (§§ 28 U. 402 and April (b) application made, On we ordered that this ac- When tion facility be maintained aas class action but left shall cause ex- director of the open possibility the definition of the amination be made. If it is determined might application class person set out in the text be amended named in the observation, or before on the decision the merits. is in need care or he altered We find now this definition of the class be admitted. appropriate. (c) Except application We note that this action has been where allegedly mentally provisions concerns children who are made under of Section allegedly ill 402(a)(2) person as well as children who are men- is still and admitted tally any age per- eighteen years younger, retarded. or voluntarily admitted shall free to son Pennsylvania application Section Mental time. Where withdraw at provisions Health Mental and Retardation Act of 1966 has been made under provides part: only applicant 402(a)(2), or Section Voluntary admission; appli- Section 402. shall be free withdraw successor cation, acceptance; examination and dura- person long so as the admit- the admitted tion of admission. eighteen age person years of or ted (a) Application admission to younger. facility examination, Pennsylvania Mental Section by: care be made Act of 1966 Health and Mental Retardation (1) Any person eighteen years age. over provides part; (2) parent, guardian A or individual stand- commitment; Voluntary ap- parentis Section 403. person in loco to the to be admitted, plication, acceptance; eighteen du- if such examination younger. ration of commitment. poena documents; 1343(3) witnesses U.S.C. § S.C. § right (6) to confront and cross-examine 1983, plaintiffs to declare us ask §§ enjoin witnesses them and those who 403 unconstitutional them; commit wish admit their enforcement.3 (7) right involuntarily to be detained contend that in violation Plaintiffs only upon judicial a decision of a offi- Amendment to the Unit- Fourteenth cer; involuntarily (8) de- they Constitution, ed States only they upon a tained decision equal of law and denied both care, treatment, need are in Pennsylvania protection of law because Plaintiffs also contend observation.4 de- and their class to be allows regulations supplementing §§ tained —denied —in sections 402 and 403 do cure these proce- without substantial institutions of their constitutional infirmities be- including safeguards the: dural they apply only cause to children 13 notice; (2) pre- right right to a to age years pre- older, no or right (3) hearing; to commitment designate hearing, no commitment indigent appointment of and if counsel post-commitment hear- time which right counsel; (4) present to evidence ing essence, plaintiffs (5) right In behalf; must be held.5 on to sub- their own testimony in his her behalf voluntary and evidence or ía) Application commitment for examination, or her The facility and to confront his accusers. for to outpatient partial hospi- may court order or : made and care be in-hospital age. Any eighteen years talization instead of commitment. person (1) over guardian parent, stand- A or individual presented 4. We are not with the issue of person parentis be to to loco for what standards are needed commitment. person eighteen admitted, if such analysis question For see the re an younger. or opinion cent of J. in Common Hoffman writing, (b) application in presence be shall Finkin, Roop, ex rel. wealth Charles Jr. applicant signed by in the Pa.Super., see, 339 A.2d 764 Also application When at least one witness. F.Supp. Wayne County, Bell v. facility made, shall the director of the (E.D.Mich.1974). 1095. If it to be made. examination cause person named determined that plaintiffs 5. the De- After filed this action observation, application is in need of care or Welfare, partment pursuant of Public period for a not shall committed he be 201(2) Pennsylvania Mental Section thirty days. applications Successive exceed Health Mental Betardation Act of for continued commitment adopted safeguards for additional periods made not to exceed be thirty for successive or institu- children admitted committed to long each, days or as care obser- so pursuant tions to Sections 402 403. necessary. vation part: regulations provide in These voluntarily (c) person committed shall No juveniles aged younger 1. 18 and be All days than ten after be detained for more admitted an Institution must re- given the director has written notice to he recognized facility, ferred from a medical fa- his leave the intention or desire to Mental Betardation thera- Health/Mental cility, applicant his succes- or after or pist however, Agency; or Mental Health given written notice of intention sor juveniles mentally may be retarded re- person. desire to remove the detained or general pediatrician, either a or ferred physician challenge psychologist; or 3. Plaintiffs do not either Section accomplished by Pennsylvania must or Mental This referral 406 of psychiatric report and that Mental Act of 1966. evaluation Health and Betardation permits involuntary specificity the reasons Section 405 detention indicate emergency person requires care; age, persons, regardless under institutional days. longer however, psychological Sec- or evalu- no than a medical conditions for may accompany involuntary permits ation the referral of a commitment tion juvenile; petition mentally upon state court of retarded pleas and and exami- The Director of the Institution or his common after indepen- delegate, to be committed is enti- shall have conducted an nation. hearing, right proposed juvenile, tled to notice of to coun- dent examination sel, opportunity present disagree pro- if his results stipulated do to and on claim defendants’ exhibit eight against adequately the mistaken numbered assure of children who are plaintiffs The named were either ad- mentally ill. mitted under § committed under support 403 to Hospital.6 claim that § Haverford State §§ unconstitutional, plaintiffs Plaintiff and 403 are M.W. was admitted to Haver- Hospital summaries of the ford 402(a)(2). submitted brief State under § allegedly the His the commitment mother reasons admitted him members of and other his named wishes when he was fifteen many de- and on to demonstrate December 1, their class he informed agents employees involve factual deter- cisions commit of defendant of proce- requiring substantial his desire to minations leave Haverford State Hos- wrongful pital. guard against K.B., L.L., or erro- Plaintiffs dures to S.G. and V. rely our We were neous commitment. M. committed to Haverford State findings Hospital 403(a)(2). contained on the summaries under Plaintiff § pretrial have been order which K.B. was fifteen mother final his com- responsibility opinion, Director, providing juve- his fessional’s delegate juvenile; discharge However, Director, nile’s aftercare. if the shall telephone delegate, juvenile and address of the person 4. The juvenile’s number feels that the re- quires parents institutionalization, re- who is or he shall direct juvenile questing pro- admission for Base Service file a Unit ceeding referral; days accompany the within two after failure to juvenile’s applicant; ad- after the 5. hours locate the Within every mission, youth juvenile’s who is at least 7. The counsel shall be fur- years age juvenile’s must receive written notifica- nished with the evaluation from explaining (which signs) unit, psychiatric he his tion the referral with a evalu- given indicating a Institution, that he will be status ation from the and with a report periodically condition; report of his that written reasons institu- telephone juvenile; mail his he can contact or tionalize the parents requested person his facility who 8. ing giv- or If staff member of the admission; patient and he be furnished that will notice to the determines that (Public patient incapable understanding with the number counsel De- Services) number; Legal notification, he fender’s that it shall written on the representation. appropri- notification; An can call for (at- explain regulations provide ate shall this notice do not a time tached) ; which a commitment must be held. juvenile Attorney Pennsylvania 6. a the event that whose as- General chronological age objects involving is 13 or older sures us in cases children .that (either remaining orally writing) years age, hearings or in least Director, Institution, or his del- are scheduled within a short while after the necessary egate, objects. respect if he it feels child years With to children youth remain, age younger, require- continue the institu- or is no there during days hearing, designated tionalization business two no a less a notify applicant which time he shall time. party regulations and referral so either unit Defendants submit these proceeding. During adopted eye institute a 406 were not litigation with towards this Director, two-day period, them, or same and that or without notify delegate, his shall the Public De- and Sections 402 403 are constitutional. notify Legal fender’s Services Office or juvenile’s readily By stipulation Hospital need for available of Haverford State proceeding legal representation. If a 406 was withdrawn as a defendant. Haverford begun during two-day period, “facility” is juvenile is mental health 102, under Section If shall remain institutionalized. § P.S. the Mental Health applicant the Director, and the cannot be located and Mental Retardation Act. It receives ad- delegate, his feels missions and commitments of includ-

juvenile eighteen ing persons younger does institutional- ization, Director, delegate, shall admitted his or committed under Sections to assume direct the Base Unit Service problem against parents He her was to both him wishes. mitted community. hospi- Patient number men of some still is critical tally practices. placed regulations child, retarded was and treatment West tal’s Hospital ern in when his because the child was seventeen State Plaintiff S.G. against allegedly terfered with the routine of the house him father committed fifteen hold disturbed Plaintiff L.L. was members. his wishes. alleged- placement her The ;f based on her mother committed was a fear that against home, ly the child remained in his her wishes. Her difficulties marriage might down, relating in her mother break to her mother resulted might parents sepa Hospital of the child’s end in records show commitment. ration, might fail, her the lives of the father’s health threatened she daughter might and an and that has a adolescent mother sister she marriage pushed premature parents personality into a to es disorder. Her cape remarried, unhappy divorced and her father home. Class members living of her have also been committed to hos in Florida. At the time running robbing gas pitals away, time commitment and the this action station, stealing general, chasing preferred filed, was she would have striking arson, girl, delinquent with her father and when she behav have been general, truancy, physical ior ailments him her behavior excellent. is with weight loss, her such as colitis and school fourteen when V.M. was Plaintiff drug phobia, allegedly her overdose. mother committed her wishes. de- At time this action was filed plaintiffs’ class have Members of been Pennsylvania fendants were all officials for various other rea institutionalized specific De- duties under the Act. 13,173, Patient sons. number moder Hospital fendant Jack B. Kremens as ately year in old was retarded 13 Hospital Director of Haverford State Hospital in Polk State be stitutionalized charged was under 50 P.S. §§ rage very sudden, explosive, re cause of supervision 4203 with and administra- during which he attacked others actions Hospital. It tion of Haverford State of has no recollection. and which he delegates ap- his to Kremens or that was re behavior rather than his mental His plication and commitment for admission primary to obstacle tardation was the 402(b) 403(b) the Act of under and §§ community. return to the Patient Helene made. Defendant had to be mongoloid 13,212, number an educable Secretary Wohlgemuth Pub- boy capacity participate in with the to of the lic Commonwealth Welfare many and activities educable trainable Pennsylvania (Secretary) power had helped active who can and 4202(a) to and 4201 under 50 P.S. §§ public elementary program special in regulations Act, all to make enforce the schools, in Polk was institutionalized proper necessary appropriate to and period Hospital for a 1 to 2 week State oper- Act, to accomplishment and of the family of his that the other members so assign fa- state functions ate and family go Patient on vacation. could a Beach B. Defendant William cilities. mentally 288, retarded a number Secretary Health Deputy for Mental Hospital placed in State was Western Depart- Retardation and Mental family poor situation. of a because Common- of Public Welfare along get not did child mother of the general Pennsylvania had the wealth family was child, well with regulate authority men- supervise and another nerv she would afraid that Pennsylvania. in tal facilities health were if the child ous breakdown outset, that contend defendants Hospital. At Pa placed in Western State meet is to purpose of Act mentally since 281, retarded tient number through needs the child’s institution placed a state in child was punish the management than to rather rehabilitation become she had because

1045 whereby developed system he has for what incarceration grievous subjected process requirements do who to a loss done, of due institutionalizing adequate proce- is entitled to apply to safeguards. McDonnell, dural De- 402 403.7 children under §§ Wolff 539, argue 2963, 41 proceed if de- we fendants (1974). Generally, process applies, the state we 935 is re- termine that due provide Pennsylva- quired light substantial should find possibility child, pre- there protecting erro- interest nia’s neously unit, maintaining wrongfully depriving per- serving liberty by committing parents care, of their custody, sons them children, concurring See, institutions. upbringing of their Burger Opinion society, protecting Chief Justice statutes v, any process Donaldson, O’Connor regulations satisfy 422 due U.S. 95 (1975); requirements. defendants S.Ct. Finally, 396 Lynch argue Baxley, (M.D. F.Supp. 386 since under 402 and 403 378 §§ Ala.1974); Schmidt, guardians litem, per- parents, Lessard ad D.C. Wis., standing F.Supp. remanded, parentis 349 sons in loco set machinery, U.S. into 38 L.Ed.2d 661 motion (1974), F.Supp. persons effectively redecided these waive due (1974), process remanded 421 class. (1975); 44 L.Ed.2d 445 Dixon v. Attorney General Commonwealth DISCUSSION Pennsylvania, (M.D. F.Supp. Pa.1971). safeguards guaran attempt These the constitutional Under process, protect persons tee of due we have arbitrary from or er- tary hospitalization 7. A number of defendants similar cases or some other kind of argument. Gault, In In process have raised this re incarceration —without due of law. Heryford Parker, (10 18 L. F.2d 1968) Ed.2d defendants claimed Cir. the court held that even if the in juveniles stitutionalizing obtain benefits from the informal of children rehabilita juvenile procedures tion, safeguards which more than offset the constitutional of due disadvantages denying them the sub must be observed. The court process. Schmidt, stance normal F.Supp. (E.D. due The Court Lessard v. rejected argument holding: Wis.1972) argument was faced with the process standards, process procedures observance of due intel- should be relaxed be ligently ruthlessly administered, subsequent right and not cause to treatment and compel proceedings will not the States to abandon or because the commitment were displace any examining of substantive the benefits of civil in After nature. the effect juvenile process. may the civil commitment have on those ad Commonwealth, judged ill, rejected mentally In Denton 383 S.W.2d 681 the court these approvingly by (Ky.1964) Judge Biggs arguments cited and held that 18 Pennsylva- Attorney being pursuant in Dixon v. nia, General or older held F.Supp. 966, (M.D.Pa.1971), any emergency, temporary, permanent 325 972 or rejected argument holding provision court also this commitment in Wisconsin procedures that statute, commitment should be the were entitled proceedings procedural safeguards. same in civil commitment as substantial Saville they proceedings. Respond- Treadway, (M.D.Tenn. F.Supp. in criminal are 404 430 argument, Judge Biggs 1974) presented challenge same in Tennessee unimpressed by permitted “voluntary” Dixon stated: “We are which Statute parens patriae argument strong juveniles by parent, guardi courts commitment persuaded by (citations person an, having legal custody been have not it.” or of a men omitted). State, 740, tally recognizing In Holm v. 404 P.2d retarded minor. While (Wyo.1965) Wyoming Supreme mentally 742 services furnished to retarded chil by state, held: Court in dren the efforts state, No matter how commendable the motives court rehabilitation of held legislation mentally liberty back of ill that “where individual is at stake be, absolutely it still remains the fundamental law of . . . it is essential that such person adequate proce- preceded by the land that a is not be de- confinement be prived liberty safeguards.” his involun- dural —whether acting patriae Pennsylvania parens liberty proper- is as deprivation or roneous adversary, imposed not and because ty, deprivation whether proceedings punitive and commitment admission reasons. for benevolent or nature, plain civil, criminal, They for the are not instruments “our best complain of and their class tiffs of essential and evaluation distillation deprivation conflicting available of data welter facts from the finding adversary would in criminal cases. Such a methods life and our ignore involuntarily re the child is They possibility present.” “enhance the sur emerge from home and familiar confron- moved from the that truth will roundings opposing con- and is committed to an institu versions and tations of reg suddenly 1, flicting Gault, tion where faces U.S. “[he] data.” In re daily 1440, imented routine of ward life 21, 1428, 87 S.Ct. employees, how confrontation with state (1966). Frankfurter As Justice Mr. capable, history than American ever rather “The has said: U.S.App.D. is, measure, Ballay, his- friends.” In re in no freedom small As the tory procedure.” New F.2d Malinski v. C. Appeals Tenth Circuit York, Court U.S. Parker, Heryford (separate 396 F.2d noted 89 L.Ed. (1968) : majority re opinion) in In cited Gault, If proceed- It matters whether preserve traditional liber- our we are ings or “criminal” labeled “civil” any ty must scrutinize with care we subject men- or whether the matter be being arbitrarily denied. it claim that instability juvenile delinquency. tal or involuntary in- likelihood of It is the deciding re punishment whether carceration —whether apply quirements crime, of due rehabilitation as an adult for a question given case, juvenile delinquency, the threshold treat- as a complaining training the interest whether ment and as a feeble-minded contemplation party incompetent is within com- or mental —which language liberty property of the constitutional mands observance Morrissey v. safeguards process. Amendment. Fourteenth of due 471, 481, 92 S.Ct. Brewer, ignores the Defendants’ contention also particular stigma civil commitment associated with a child’s question or not here is whether and courts some commentators which in not institutionalized interest may render civil commitment have noted safeguarded lasting abridgement 402 and 403 is personal under a more §§ imprisonment Defend for commis- Amendment. freedom than Fourteenth faces sion of a crime.8 The child who find that because ants would have us moving hope society only AVhile we is in issue not 8. Loss viewing mental physically direction illness Due Tlie confined. illness, ig physical light protection same we cannot also affords Process Clause society reality many reputation, name, good nore the our person’s “where appre disdain or integrity view mental illness with honor, because of is at stake U.S.App.D.C. Ballay, doing In re 157 hension. See government to him.” the what (1973) 59, 648, 433, Constantineau, where the 482 F.2d 668 400 U.S. Wisconsin that, accepting 510, recent 507, “[e]ven court 437, noted L.Ed.2d 515 27 91 S.Ct. clearly advances, in Regents Roth, current studies medical (1971) ; U.S. 408 Board of fallacy contending that most 2701, 564, dicate the of 573, 548 L.Ed.2d 33 92 S.Ct. people a simi 565, illness as disease Lopez, view mental (1972) ; 95 S. 419 U.S. Goss body” any physical (1975) ; ailment of 729, Donaldson lar to 42 L.Ed.2d 725 Ct. “ignore striking (5 1974), 507, exam not O’Connor, that it could 520 Cir. 493 E.2d displayed ple stories news of this attitude v. Donald and remanded O’Connor vacated public a 2486, made 563, to disclosures son, reaction 45 422 U.S. vice-presidential aspirant.” In Penn- recent 396 possibility being physically presume in in of con- that We most proceeding period parents, stances good in utmost for an indeterminate fined acting faith, confine- of the ramifications such in the all interests, clearly properly within the best guide, an interest child’s protect, proper- contemplation liberty and and control their In children. language ty Yoder, 231, 205, of the Fourteenth Amend- Wisconsin v. 1526, 1541, ment. (1971) Supreme Court, stating that Having process ap- decided that due determining it was proper not recon plies, questions of we left with possibly competing ciliation of interests Morrissey process due, v. Brew- what parents, children, state, noted supra, er at S.Ct. 2593 U.S. that: may effectively process and whether this history and culture of Western parents, guardi- by plaintiffs’ be waived strong civilization reflect a tradition standing litem, in loco ans ad parental concern for the nurture discussing parentis.9 Before upbringing their children. we shall first consider whether due, primary parents This role in guardians parents, per- litem, or ad upbringing of their children is standing parentis may in sons loco effec- beyond now established debate as tively personal rights waive the of chil- enduring American tradition. dren, finding such since obviates see, present pro- concurring to decide Also opinion need whether the Justice Stewart’s cedure violates the constitutional 92 S.Ct. 1526. We are plaintiffs process. due unmindful of this tradition its importance question both difficult structure our socie- unique. Viewing ty, Ginsberg, issue whether parent effectively or not a and if we waive could find in in- rights personal parents child of a when the child stances act the best interest objects children, might to the waiver of their creates confron- we also find parents may tation between a interest of that rights waive constitutional plaintiffs constitutionally pro- we find of their Unfortunately, children. recognized graphic consistently example parental tected and the authority as such a parents illustrates,10 abuse direct the rear- this is not the Ginsberg deciding case.11 In their children. Newv. to institutionalize York, children, 629, 639, guard- their parents, as well as persons standing 20 L.Ed.2d 195 ians ad litem in loco sylvania express attempt Association there was no Retarded Children such make waiver, Pennsylvania, v. Commonwealth F. the court did not decide the issue. Supp. 279, Judge (E.D.Pa.1972) Master- Judge 10. See Memorandum and Order of Ur son, writing judge court, for the three held Horacek, bom filed June etc. v. light Constantineau, of Wisconsin v. al., F.Supp. (D.C.Neb.1974). Exon et supra, process requires before Judge The claim before was that Urbom public retarded children ed- denied plaintiffs hospital named were in a state be stigma ucation because of the which so- our parents put cause their them there. Re ciety unfortunately attaches label sponding argument to the retardation. hospital voluntarily were' because yet, 9. As Court has not decided parents there, placed Judge them Ur parent, acting a child’s whether on behalf of deprive “parents bom held that cannot child, may effectively waive constitution rights children constitutional — Heryford al child. v. Par the children vis-a-vis state.” ker, court, holding supra, applies Dissenting States, Due Process Clause involun Kent v. United tary procedure, recognized U.S.App.D.C. civil commitment n. 4 401 F.2d special problems may respect Burger arise with noted: the now Chief Justice rights by to the effective waiver of sen- minors Lawmakers recent have been mentally persons. Finding and deficient civil sitive need to make commit- to the 1048 degree procedural required acting “[t]he may

parentis, at times directly im safeguards varies with With their children. interests private Judge portance interest affected agree with mind we this in usefulness of need for and Association York State in New Judd for given safeguard particular in the cir F.Supp. Children, 762 357 Retarded inversely the bur cumstances that, “in the absence (E.D.N.Y.1973) consequences other adverse den and interests have the child’s evidence affording it.”15 considered,” parents fully been effectively personal constitutional waive discussed, previously plaintiffs’ in- As wrongful of their children.12 free from the terest deprivation of their and unwarranted argue they Remaining question is substantial is the process present procedure Due does not ade- process that the is due. what protect quately of what interest. a determination in that flexible made without state’s are threefold. It has an process due cannot be interests precise nature of health of children “the interest mental evaluation of an preserv- government (parens patriae), involved as well function an interest maintaining pa- private has been interest unit and authority children, government over action.” rental affected Cafe McElroy, confining, protection 367 U. interest teria Workers Union sig- pose society, L.Ed. 886, 895, 1743, 1748, 6 those who S. minimum, danger community (1961). (po- it re nificant to the At a 2d 1230 power). “deprivation quires . . . lib lice The state has decided that preced adjudication erty relaxed, its interests informal ... hearing argues opportunity procedure, and it notice that a more ed case,”13 procedure substantially appropriate formal nature of the will in- to the procedure terfere with its formalities of the interests. To strike a but proper however, timing competing balance and content between “the plaintiffs state, interests of the nature of the will we notice and analyze depend shall them in appropriate accommodation of the context of each on plaintiffs competing of which interests involved.”14 they being deprived. claim This Because cannot determine what will courts give evaluating process which, process us the content of the is due without minimum, competing interests, at a is due before the content of due process shift; be institutionalized for shifts the interests treatment16 - difficult, recognizing dangers daily they observe the child on a basis for very likely “farming” have invaluable information con- relatives out their kindred into cerning always their child. institutions for motives not worthy. Lopez, 565, 579, 13. Goss v. 95 U.S. S.Ct. York Association Retarded New State 729, 738, (1975) citing 42 L.Ed.2d 725 Mul F.Supp. Children, Rockefeller, Inc. Co., lane v. Central Hanover Trust (E.D.N.Y.1973) stated: the court L.Ed. 865 may be a fundamental [t]here conflict parent ready interest between a who is Lopez, 14. Goss v. at U.S. responsibility caring citing avoid McElroy, Workers Cafeteria child, abnormal and the best interests Murdock, Rights the child. (1961) ; Morrissey Brewer, supra, [Civil Mentally Issues], Retarded : Some Critical S.Ct. 2593. Lawyer 48 Notre Dame at 139-143. See, Friendly, Hearing”, J. “Some Kind of finding 12. This does not mean that when 1267,1278 123 U.Pa.L.Rev. considering whether or not to institutionalize ignore opinions noted, already the state should 16. As we spe- parents. flexible; observations child’s the Constitution mandates no committing procedures. Rather authorities should lis- We are aware of cific code of carefully parents facing they problems ten who live courts when at- probable m the absence of a HEARING hear- PRE-COMMITMENT cause seventy-two (72) exceed hours from to a A decision institutionalize See, date of the initial detention. yet necessary child is often a difficult Lynch Baxley, 388; v. at Lessard v. parent a child’s to make. It decision for Schmidt, at 1091.17 generally pursued only after all other proven futile. alternatives ' POST-COMMITMENT HEARING seeing has an interest that a state system parents, will not deter prelimi If the conclusion of the already with this difficult deci faced nary hearing probable is that there is attempting sion, from to institutionalize believing cause for the child needs insti children need of treatment who are tutionalization, the child is to entitled a only provide. institutions can post-commitment hearing before an un society protect Further, and the indi biased tribunal on the need for commit child, an vidual the state has interest delay A probable ment. after the cause of children who the immediate detention hearing permissible. delay This will dangerous or oth to themselves adjust allow the child to to his sur new 1092; See, Schmidt, ers. Lessard v. at roundings and will allow both the state Developments in the Law-Civil Com mi prepare the child time to Mentally Ill, Harv.L. tment of the post-commitment hearing to It come. 1190, 1275 Rev. will allow also the state time to examine diagnose adequately. the child Balancing these in substantial justify not, These reasons do however, terests of the state with that of the prolonged period of confinement without we find that not en are a final determination on the need in for hearing. pre-commitment As titled to a stitutionalization and should not exceed found with Court has crim period. period two-week A two-week that, cases, however, inal we find parties will afford opportunity an protection child, he is entitled to prepare adequately properly hearing before unbiased tribunal positions hope ascertaining within a reasonable time test whether which is best the child.18 probable there is cause believe insti necessary. tutionalization is McNabb v. NOTICE States, 332, 343-344, United 318 U.S. (1943); opportunity S.Ct. 87 L.Ed. 819 Morris to be heard

sey Brewer, 408 U.S. at S.Ct. fundamental to due of law. Lynch (1971); Baxley, Ordean, at 388. Grannis v. no event shall detention of the child S.Ct. L.Ed. With- tempt protecting Lynch Baxley, to fashion in 17. In at the court held property emergency hearing terests within the guage lan detention without appropriateness not, of the Fourteenth Amendment and we on its ab- probable hearing, are sensitive to the claim that are courts sence of a cause exceed “good leg deciding drafting cases, (7) days at bad at seven the date initial from See, Friendly, Schmidt, . islation . . .” J. detention. In Lessard v. supra. Hearing” probable “Some Kind presented When the court held that cause forty-eight with claims of constitutional di must be held within hours mension, however, constrained, we are from date of initial detention. legislative act, bodies have failed find enforcing legislature means of the constitutional Until acts establish probable Our denied. action is not intended to unbiased tribunal to conduct pre-empt develop hearings whicli the state free to and final facili- cause safeguards long they system its own so ties court shall Commonwealth fully hearings. effective as those out. which we set be used these Arisona, See Miranda (1966); Morr issey, dangerous transpire out notice that which is to to others and comes from a hearing “sufficiently family harmony. advance of in at in hearings required so that reasonable Keeping in mind that due as- afforded,” opportunity prepare will be against error, sures we find written no- Gault, 33, In re at at U.S. 87 S.Ct. including required, date, time, tice the 1092; 1446; Schmidt, v. at Lessard place hearing, and of the and a state- Lynch right Baxley, 388, at to be grounds proposed ment of the significance. Mullane v. heard little Lynch Baxley, See, commitment. at Co., Central Hanover Tr. U.S. 388; Schmidt, Lessard v. Nei- at 1092. To counterbalance 70 S.Ct. 652. ther the state nor in- plaintiffs the interest of this substantial committing terest in to mental institu- argues delaying treatment state that tions not in children need of institution- traumatizing require- and alization. Notice should not shield chil- aggravate the child’s ment of notice will dren need of from institutionalization illness, interfere with the state’s commitment and treatment but rather family disrupt power, harmo- police and protect should children not in need in- ny. Gault, wrongful stitutionalization from com- ac- Court refused improper deprivation and mitment jus- cept fear of trauma as the state’s liberty.19 procedures. The limited tification for the observance stated that Court COUNSEL necessarily process standards will not fears that assistance The state compel sub- to abandon the states make institutionalization of counsel will juvenile process. benefits of stantive adding proceedings to the adversarial Judge In re Tamm noted in Further, delay in and in the child U.S.App.D.C. 59, F.2d Ballay, 157 danger already creasing of trauma (1973), the fear that added hearing. and Yet inflicted notice produce requirements procedural will spectre particular trauma this person who presupposes trauma spectre pales the trauma beside the mentally Like- commitment is ill. faces erroneously child on inflicted safeguards as- wise, while opportuni Notice committed.20 persons com- face who that not all sume ty of little value to be heard be committed, actually need be mitment Arge the assistance counsel. without argument interfere will singer Hamlin, S. disrupt power police (1972); Powell the state’s with Ct. 45, 68-69, Alabama, harmony child assumes that placed ed, psychodiagnostic meaningless Obviously but label on notice this patients We, therefore, the individual was never removed. find that to some children. According procedure to Professor Rosenhan error is established some until other apparently only resulted from what statisticians sent not shall be this notice ju- type resulting from a call two error —error of the Clerk Court but also healthy person Doctor’s to call a inclination be forwarded and shall risdiction healthy attorney rather a sick be- attorney. shall sick than The child’s child’s misdiagnose dangerous forty- receipt cause it is more least notice at hearing. prior illness than health. eight to the initial hours suggests labelings initial Rosenhan perception patient danger color possibility is dis- others’ error 20. The accepts Being eventually patient himself di- “On Rosenhan L. cussed D. agnosis, Places,” and ex- with all of its connotations 179 Science in Insane Sane accordingly. pectations, experiment behaves He describes article gained to whether he serve their own prepare best has a interests. defense and to and submit Gault, 36, it.” at 387 U.S. 87 S.Ct. at adopt Lynch We Baxley v. right applies As to counsel to procedure appropriate plaintiffs. for cases, during apply criminal so it must Accordingly, we find that a child significant stages of the commitment right present constitutional to be at all process, must be informed hearings concerning proposed com right to both and if in counsel See, Pennsylva mitment. McKiever v. digent right appointment to nia, 528, 543, 1976, 403 U.S. 91 S.Ct. 41, See, Gault, re In at free counsel. (1971). right may L.Ed.2d 647 This be Heryford 1428; Parker, 397; v. at by child, however, waived Attorney General, 966; Les Dixon at v. may accept unbiased tribunal such a 1097; Lynch sard Bax at v. Schmidt, v. upon approval by waiver the child’s ley, 389; Wade, at United v. States upon finding counsel and 218, 226-27, 1926, 87 S.Ct. 18 L. child understands his and is com (1967); Barnard, Ed.2d 1149 In re petent right may to waive them. This U.S.App.D.C. 302, 1370, 455 F.2d 1375- by attorney, also be waived the child’s (1971); Sarzan v. 489 F.2d Gaughan, may accept the unbiased tribunal (1 1973). 1083-84 Cir. upon finding the waiver the child proceedings. See, is too ill to attend the OF PRESENCE PERSON Lynch Baxley, v. at 394. Specht v. States, United 386 U.S. 87 S.Ct. 18 L.Ed.2d RIGHT TO TRIAL JURY (1967) Supreme Court held that in Mc proceedings Court commitment under the Colo- noting Pennsylvania, supra, Kiever Act, v. rado Sex Offenders whether denom- judges that conscientious are criminal, able fact subject inated civil finders, held that while fundamental Process Due of the Four- Clause requires fairness notice, teenth Amendment and that due confrontation, counsel, and cross-exami requires to be committed proof, nation, and standard notice of present counsel, oppor- “be have jury it does not trials. We tunity heard, to be be confronted with agree. right him, witnesses have the cross-examine, offer evidence of STANDARD OF PROOF Lynch Baxley, see, his own. Also Allen, may In Illinois That the factfinder commit error 397 U.S. Speiser litigation. a risk L.Ed.2d 353 Court, rejecting argu- Randall, 525-26, right present to be is ab- solute, right proof personally held that standard of affects this risk it confronting degree lost instructs the factfinder on the witnesses be society expects or at even him consent times misconduct. confidence findings. holding See, Expanding Lynch the correctness of his concurring Baxley In re Mr. Harlan held that to be Justice court 358, 370-71, knowingly Winship, be intelli- gently In Win- in- waived faced with suggests ship, adversary that set- Harlan Justice acting ting proof particu- pro- for a counsel their behalf. This the standard degree reasonably category adjudication of certitude reflects an attaina- lar comparative ble in view of the social nature the mat- assessment ter at issue. In a factual determina- civil commitment of erroneous costs proceeding, apply questions He views the decision involved are tions. primarily subjective preponderance standard suits between ones money damages subject’s private parties as a mental condition and the dangerous no an erroneous verdict likelihood that he will decision that subjective party than for one future. Such determi- more serious ordinarily proof standard cannot made He finds the nations other. certainty required degree beyond doubt reasonable with the same might purely objec- de- of a child for the institutionalization be achieved where disutility linquency the social tive because facts occurrences are is- n committing subject- Consequently, trier of an innocent sue. fact child — complete person- by clear, unequivo- persuaded loss of his him to a must be convincing liberty outweighs the disutili- evidence that cal, al social — committing ty hearing subject in favor.21 in need of error under the minimum confinement Following analysis, this balanc herein enu- standards for commitment ing impact decision of an erroneous merated. an erroneous a to commit taking person, and to release a decision agree holding with this find We pro nature of the consideration into hearing factfinder, com- in on a Baxley Lynch ceedings, v. court apply a mitment of held: convincing proof standard of clear and stigmatization opposed beyond and loss Because the standards a upon forced con- preponderance attendant reasonable doubt and profound preponderance the most Applying finement are of the evidence. affected, consequence great individual standard too creates a risk of er- commitment, he be sub- wrongfully depriv- demands roneous only jected ing if disabilities liberty, such his interest in necessity “transcending value,”22 and, for his interest of having highest given proved by subjectivity “relatively evidence recognizes needlessly privileges stripped in a Harlan 21. Mr. Justice judicial proceeding citizenship, is a dis in which there from the vote pute facts, handling can about all the factfinder drive to that own ac- hap probably many feigned insanity acquire belief of what counts? How have Lopez, pened. v. in Goss Mr. Justice White in criminal conse- order avoid 739, 729, and, behavior, conversely, quences L. of their recognized possi (1975) many than Ed.2d 725 also how stand trial would rather hospi- indeterminably psychiatric when he noted that: in a bilities of error live thought wrongly proceeding although are be men- Disciplinarians, tal —but in ut- many stigma- tally good faith, frequently ill? How been re- act on the most others; but nevertheless ports tized well-intentioned and the con- and advice of point erroneous, diagnoses? trolling the last On of the con- and the nature facts psy- again “type disputed. in challenge recall that a error” are often duct under diagnosis trivial, have the same does not chiatric at risk of error diagnosis. consequences against medical guarded it does in if that it should diagnosis cancer been found prohibitive A inter- cost or done without process. is cause for celebration. to be error with the educational ference rarely diagnoses psychiatric are found But discussing possibilities of erroneous sticks, a mark The label to be error. diagnoses Kosenhan, psychiatric “On inadequacy forever. Places,” supra, Being raises in Insane Sane problems problems similar to the These are questions poignant illustrate which several Winship Harlan discussed Mr. Justice including: problems in area some of the Lopez. v. and Mr. Goss Justice White wonders, many people, sane How one psychi- recognized 525, Randall, such in our Speiser but v. many 1332, 2 have been L.Ed.2d 1460 atric institutions? How S.Ct. pre- undeveloped psychiatry previously tion as a to the discussed, state science,”23 requiring proof dictive be- to confront and to cross-ex- yond doubt creates too amine witnesses him, a reasonable to offer great erroneously releasing a risk of evidence in his own behalf and to offer testimony in need of required children institutionalization. witnesses are be-

fore a decision to commit a child is made.25 AT THE COMMITMENT RIGHTS summarize, then, To we have HEARING they may found that before be institu process requires be Due tionalized and others of their fore a decision to an adult be commit, (1) class are probable entitled to given opportunity to confront and seventy-two cause (72) within against him, cross-examine witnesses from hours tention; the date of their de initial Specht Patterson, 386 at v. U.S. (2) post-commitment hear Lynch Baxley 1209; at of (2) within two weeks from the date Specht behalf, fer evidence in his own (3) detention; their initial written Patterson 386 U.S. including notice, time, the date, Lynch witnesses, testimony and offer place hearing, and a statement of citing Baxley Washington grounds proposed commit Texas, 388 (4) ment; significant counsel at all formaliz While stages process of the if commitment and rights procedures, commitment these indigent right appointment the to of the do not the state to abandon (5) counsel; present free be at all hear presently hopes it substantive benefits ings concerning proposed their commit through to achieve treatment and reha ment; (6) finding by clear and con steps commend the bilitation. We the vincing proof they that are need of has taken in state the interest of the institutionalization; (7) rights the to health of children in need in mental of confront and to cross-examine witnesses but, stitutionalization because of the tre against them, to offer evidence in their personal mendous behalf, testimony as well as loss societal own and to offer of might cause, Accordingly, error witnesses.26 the we declare we find that in addi- they Note, safeguards Developments Law, 23. stantial which Civil They briefly they Mentally are denied. contend Commitment of the Ill. 87 Harv. plaintiffs should mention the contention that L.Rev. Against right the to remain silent. Morrissey Brewer, supra, 24. In the Su- practical this claim must balance the we preme process requires held Court that due problems plaintiffs’ may psy- silence have on procedures parole certain minimum before always chiatric evaluation almost needed be- finally procedures can be revoked. These may plaintiffs In fore be institutionalized. opportunity per- include the to be heard in potential problems and the view of these present son and to witnesses and documenta- case, limited discussion the issue this ry evidence, right to confront and inappropriate we think it to would be (unless cross-examine adverse witnesses the decide this issue at time. this hearing specifically good officer finds cause allowing confrontation). Noting for not expect all neither intend nor We procedures these essential criminal every required time these will be trials, person may subjected where a be to attempt a child is to institutionalize deprivation, most serious and the cases respect the As to made. we found person may job society, where a lose his right at all hear- of the child to Wolff, supra, Court held commitment, concerning ings proposed his unique penal problems that because of the right excepting that, to notice we find institutions determination whether rights counsel, any and of these or all prisoners are entitled to these is best by tri- and the unbiased be waived the child left to discretion of the officials of the ap- accept upon bunal waiver such prisons. upon proval by counsel and the child’s support position finding plaintiffs In of their sub- child understands his outlining competent mitted them. Because memoranda of sub- and is waive to law stating pertinent portions 402 and notice to child the time and Sections grounds place for on their face and and unconstitutional they proposed The apply commitment. notice and others attorney; enjoin class, child’s enforce- must also be sent and we significant stages (4) portions.27 at all counsel ment of such indigent, process and, if foregoing The is deemed to constitute right appointment free to the findings law and conclusions of fact right (5) counsel; required 52(a). by F.R.Civ.P. concerning hearings his present at all finding, commitment; (6) a proposed Judge (dis- BRODERICK, District convincing proof”, by and “clear senting) . of institutional- child is in need majority appears me that It ization; to confront prescribed opinion “an overdose” witnesses, and and to cross-examine prove due which could fatal behalf. on own offer evidence voluntary commitment of children Pennsylvania Health Mental in-patient for treatment regula- Act and the Mental Retardation majority opin- emotional disorders. The provide promulgated thereunder tions ion declares unconstitutional §§ voluntary or com- admission1 Pennsylvania Health Mental years eighteen mitment pro- Mental Act which Retardation guardian age younger parent, application parents may vides that make standing parentis to in loco or individual voluntary commit- admission and It to be admitted. age younger of their child 18 or pro- voluntary or commitment admission facility examination, majority has declared cedure which the process procedure care. majority effect, the unconstitutional. prescribed majority opinion for voluntary commit- that no has declared admissions commit- parents can ment of children juveniles ments of requirements of the constitutional meet younger (1) probable is a follows: Amendment. the Fourteenth hearing cause hours from the within 72 regu- Pennsylvania detention; (2) Act time of their the initial a Under voluntary application post-commitment hearing lations, admis- within weeks may facility be a detention; to of their or initial written sion commitment3 dispose may Due Process under the there be the child ei- of this case situations where rights the to address ther or we have no occasion does understand is Clause equal arguments competent any them, protection the directed to all of these waive or by disparate rights may and adults. treatment children be child’s at- also waived the torney they may accept denied claim and the unbiased tribunal Plaintiffs also equal protection upon finding the law since the a the is waiver waiver (18) may appropriate. age eighteen volun- the above tarily themselves to admit commit or by approached 27. Some courts have claims years persons eighteen (18) institutions deprivation children constitutional Plaintiffs, age may younger how- not. comparing the afforded adults with ever, allege any named fail to questioning afforded children and voluntarily plaintiffs attempted ad- to ever peculiar whether there is a state interest they or even mit commit themselves justifying disparity between them. See Accordingly, find that wish we to. Koome, 530 P.2d State v. Wash.2d standing this claim. lack to ap Authority an for such proach gleaned 4402(a) from the can be § P.S. Gault, in In re Court’s statement 4403(a) (2). § P.S. gulf a S.Ct. at that “So wide pass legislature two distinct chose to between the State’s the adult 3. The voluntary requires bridge statutes, a which deals and of the child sturdier one of facility verbiage, per while other a than mere and reasons more admissions to Ap- voluntary provide.” commitments. suasive than cliche can Since we concerned guardian parent, days, during or individu- business made which time notifi- standing parentis the,per- applicant to cation al loco shall be made to the person admitted, to unit party son eighteen be if such referral so that either younger.4 years proceeding, In order institute a 406 § which statutorily required hearing is the or committed an institu- be admitted tion, any person court aged younger involuntary During an commitment. recognized day period, same two must first be referred from the director facility, represent must obtain ju- medical Mental counsel to Health/Mental therapist juvenile’s venile. The Retardation or Mental Health counsel then Agency. ju- Such referral must be furnished with accom- the evaluation of the by psychiatric plished unit, psychiatric and a venile evaluation referral report specificity institution, evaluation from which states with and a report requires institu- written reasons of the reasons that referral, institution tional care. After such feels that institutionalization facility par- required.7 director to which ents seek to have child admitted regula- The effect of the Act independent must then conduct exam- promulgated tions thereunder is that independent the child in order to deter- ination of opinions two medical in- the child is in need of mine whether concur in a recommendation of institu- care or observation.5 If stitutional tionalization before a minor can be vol- independent untarily examination disa- director’s juve- admitted. In the case of referring grees professional’s with the upon objection and over, niles 13 remaining child cannot be institution- opinion, the institution, future voluntary In the of a com- proceed alized. case pursu- institutionalization must Act, ac- mitment under 403 of the provi- ant to the civil court § ceptance (Section for commitment not exceed 406). sions of Act. Sec- thirty days applica- provides without a procedure successive tion 406 for an involuntary tion for continued commit- civil court commitment and thirty day filing requires petition for an additional of a with the juveniles period.6 Pleas, pursuant the ease of Court of Common older, 24 hours within which the Court issues a warrant re- institution, juve- quiring allegedly of admission ill given brought hearing. nile must be written notification Court Coun- signs fully appointed juvenile represents which he and which is to sel explained to him him and which states that at the before the Court rep- hearing, will he be furnished with Common counsel to After the Pleas. may juvenile by resent him. Should a is Court order an who 13 examination two years age object, physicians of oral- older either order commitment for a remaining days ly period writing, or in in in- not to the to exceed ten an ex- for stitution, director, amination, he it is the if feels after which commitment necessary youth remain, to be ordered the Plaintiffs do Court. constitutionality two not of the institutionalization for attack the the continue parently, ; 4402(b) 4403(b). in § the main distinction the two 5. 50 50 § P.S. P.S. later deal- statutes under the section 4403(b). commitments, voluntary § 6. 50 P.S. the initial period a exceed is for not to thirty periods days, agree majority regu- with successive not I with the these thirty days each, long provide instituting a § exceed as care lations which 406 so for necessary. pro- hearing provide period The do a observation section not within viding hearing following voluntary contains no a admissions which such shall be held corresponding following objection remaining ad- child time limitation facility. mission to a institution. 4402(a) (2) ; 4403(a) P.S. § § P.S. (2). of under action. Restaurant

civil court commitments § Cafeteria Union, above outlined Workers Local AFL-CIO the Act which follow the procedure. v. McElroy, 367 U.S. position I do not take the that chil- Due of a law does not rights. simply dren have no I feel hearing gov- every of conceivable ease Pennsyl- outlined impairment private ernment of interest. Legislature, balanced vania Stanley Illinois, parents of the traditional 1208, 31 L.Ed.2d 551 rearing children, to control the their competing protection An evaluation of inter- child. afford sufficient permit present par- ests me involved this case leads to the The Act does a conclusion that admit a child under 402 and 403 of the ent who seeks to § § § regulations simply Act hand and the 402 or over thereunder are § psychia- constitutional on their to the Two Without child institution. face. interest, examination, minimizing agree, after an a child 12 trists must years is in to be free need institutional- under from that the wrongful deprivation com- case of a and unwarranted ization. In the per- liberty, mitment, periodic must be his review traditional interest every thirty days preserving the state in director unit formed maintaining parental and in continued institu- control over whether to determine young necessary. And in children is such tionalization years age process require- juvenile strict due thirteen of a case holding juvenile imposed by majority older, is entitled to ments concerning “voluntary” hearing his commitments are counsel following required by the Fourteenth Amendment. institutionalization need objection. majority in this case Supreme repeatedly Court has that all children constitution- holds great recognized weight afforded type ally to a similar entitled parental and custo- control of their institutional- two weeks within dy given children only group for which ization. The respect powerful to the role of the famil- provided regulations have not relationship ial our democratic socie- hearing subsequent re- to their ty. parents This substantial interest those chil- in the institution are ceived and, undeniably ab- warrants deference Be- and under. dren 12 countervailing interest, powerful sent a defect, majority alleged of this cause plain protection. warrants It 403 unconstitu- declares § § family integrity in- interest tional. care, custody parents in terests and nurture of their children come principle that a well settled It is now deserving the court with momentum concept’, the process ‘is an elusive “due Cooper, respect. Kovacs v. according to ‘varies of which content ” 93 L.Ed. 513 Hannah specific contexts.’ factual J., concurring). (Frankfurter, 420, 442, 80 S.Ct. Larche, Logan v. (1960); Court stated As Stan (D. F.Supp. 1265, 1268 Arafeh, 645, 651, 346 ley Illinois, 92 S.Ct. v. 405 U.S. Conn.1972). (1972): 1208, 1212, L.Ed.2d 551 31 frequently empha- The Court has for which [Consideration family. importance sized require under begin and raise The to conceive must given circumstances of set “es- precise deemed one’s children been a determination sential,” Meyer Nebraska, 262 U.S. in- government function of nature 625, 626, 390, 399, 67 L.Ed. private 43 S.Ct. interest as well volved (1923), government civil “basic 1042 affected has been

1057 man,” upbringing Oklahoma, 316 Skinner v. U.S. of their children is 1113, 541, 1110, beyond 535, 86 L.Ed. now 62 established S.Ct. debate enduring (1942), “[r]ights far more American 1655 tradition. previous property- than . . . Judge As Chief Bazelon of the Dis- Anderson, rights,” May v. 345 U.S. Appeals trict Columbia Court of has 533, 528, 73 S.Ct. 97 L.Ed. stated: (1953). us 1221 “It is cardinal with family [T]he is the most effective custody, care and nurture agent child-developing around, it parents, first the child reside wants be and can be. Out of the primary whose function freedom plethora day of studies of care and obligations preparation include early intervention, thing one stands supply nor hinder.” state can neither family out: a child needs amost —it 158, Massachusetts, 321 Prince v. U.S. is there he finds his roots and his 166, 438, 442, 88 64 S.Ct. L.Ed. education. Mothers and fathers who integrity of the The spend time their child are better protection has in the Due unit found organized it group at than are most the Fourteenth Process Clause arrangements. Bazelon, care David L. Amendment, Meyer Nebraska, su Needy University Whose Children? 626, 399, pra, 262 at 43 S.Ct. at Michigan Reform, Journal of Law Equal Protection Clause 8, vol. Amendment, Skinner v. Fourteenth Oklahoma, supra, Simply stated, my opinion it is U.S., 541, at regulations Act and the 1113, and Ninth at Amend S.Ct. indepen- thereunder which two ment, Connecticut, Griswold U. psychiatric dent evaluations recommend- 479, 1678, 496, S. 14 L.Ed.2d parent institutionalization before a (1965) (Goldberg, concurring). J. voluntarily can have his child admitted The authorities cited above make it clear provides observation parents’ directing interest protection sufficient child cog upbringing of their children is unjustified unwarranted institu- Stanley, supra nizable and substantial. tionalization. 652, Those S.Ct. 1208. who nur The record in this case demonstrates destiny the child and ture direct his parents that most act in the best inter- high coupled right, have the with the making ests of their child when the deci- recognize duty, prepare him for voluntarily sion to submit child obligations. Society additional Pierce v. Indeed, institutional treatment. those Holy etc., Names, Sisters parents majority whose motives 571, 268 U.S. L.Ed. opinion questions . be- are few far (1925) parents’ claim to au tween. Children of the of twelve thority in their own to direct household stage younger develop- are at a rearing of their children has been parents ment when have direct termed “basic in the ciety.” Ginsberg structure our so over their control care and treatment. York, v. State New young Parents such children are best to make as to their able a determination In Wisconsin needs, their decision to seek child’s Yoder, and treatment institutional care (1972), L.Ed.2d 15 Court only al- all other comes after stated 92 S.Ct. at 1541: care have for treatment and ternatives protect from history To a child been exhausted. culture Western strong not in need institutionalized when civilization reflect a tradition developed parental care, of such the State concern for nurture judg- whereby independent system upbringing children. experts, dif- parents primary trained role of the in ment two

This commitment neces- civil par- makes which area, with concur ficult now, responsible sary. lead- For decision.8 ents’ counseling public have been ers clearly re in this case the record As dis- for and emotional treatment veals, trend modern readily as available orders should be emotionally mentally ill and hospitalization readily acceptable as for institutionalize is to the retarded tonsillectomy appendectomy. It for a only time and amount least encourage certainly parents to will majority opinion failed. else has mentally hospitalization seek warehousing as to the expressed concern emotionally when the disturbed might from the result which of children ap- parent counsel will be learns that procedure. voluntary How commitment there will pointed child and that opinion ever, of the Su since the recent par- adversary at which Donaldson, preme Court O’Connor subjected cross-examina- ents will be seeking hos- to their motives tion dissipat (1975), this fear should pitalization. holding a state by ed the Court’s constitutionally a non- confine cannot capable dangerous who individual safely

surviving himself in freedom willing help responsi with the find or friends. I ble members the ma that the set forth hearings jority with two which appointed the con counsel MEAT CUTTERS AMALGAMATED par frontation and cross-examination OF AND BUTCHER WORKMEN requirement of clear ents AFL-CIO, AMERICA, LOCAL NORTH convincing proof of the need of institu 295, Plaintiff, NO. destroys needlessly the volun tional care tary procedure af without CORPORATION, SERVOMATION fording any significant protection for Defendant. adversary child. nature of Civ. No. 75-723. majority requires procedure which significantly the trauma increase will Court, United District States accompanies Pennsylvania. institutional M. D. which further and will ization of sick children Nov. stigmatize recipient serve to my commitment. court endorsed progress society’s opinion, it retards encouraging parents years in recent child in and care of a

seek treatment hospitalization for mental or

need It likewise re

emotional disorder. will removing society’s progress toward tard stigma some still associated majority opinion

psychiatric care. The stigma “the associated

discusses yet system commitment”, up a sets civil (M.D.Tenn.1974). However, appar- it is I am in Nebraska aware courts reading opinions ent from unconstitutional Tennessee declared those eases pro- permit whether both Nebraska institu and Tennessee statutes which protective Horacek, procedure vide a etc. similar tionalization children. those provided (D.C.Neb.1974). Pennsylvania al, F.Supp. 71 for under Exon et statute regulations. Treadway, Civil Action No. Saville notes there is substantial evidence eight persons also admission in which sane mentally ill hospitals that attitudes towards behaved different to twelve aloofness, by fear, hostility, sanity normally. discov- characterized never was Their sanity dread. only detect- was their Not ered. protects persons’ A cedure L.Ed. child whose 55, 77 such constitu- question “needs assist tional to be and to assist cope protecting problems interests, yet ance counsel to it rec- ognizes law, inquiry make skilled into the situations exist where the regularity upon facts, to insist absence of such from commit- proceedings, proceedings may ascertain

Case Details

Case Name: Bartley v. Kremens

Court Name: District Court, E.D. Pennsylvania

Date Published: Dec 15, 1975

Citation: 402 F. Supp. 1039

Docket Number: Civ. A. 72-2272

Court Abbreviation: E.D. Pa.