1 442 U.S. 584 (1979).

2 The Supreme Court decided Secretary of Pub. Welfare of Penn. v. Institutionalized Juveniles, 442 U.S. 640 (1979), on the same day that it decided Parham. The Institutionalized Juveniles case concerned the constitutionality of two Pennsylvania statutes: one for the voluntary commitment of mentally ill patients as it applies to minors, Mental Health Procedures Act of 1976, § 201, PA. STAT. ANN. tit. 50, § 7201 (Purdon Supp. 1978); and the other for the voluntary commitment of mentally retarded patients as it applies to minors, Mental Health and Mental Retardation Act of 1966 §§ 402-03, PA. STAT. ANN. tit. 50, §§ 4402-03 (Purdon 1969). The Supreme Court held, based on the reasoning in Parham, that both statutes satisfied the requirements of due process. This Note discusses only Parham, since despite the additional issue of mentally retarded children in Institutionalized Juveniles, the Court believed that the cases were the same for the purposes of constitutional analysis. The question of whether the analysis should be significantly different for mentally retarded children is beyond the scope of this Note.

3 Additionally, the Court assumed but did not hold, that a minor has a protectable interest in not being erroneously labelled mentally ill. Parham, 442 U.S. at 601.

4 A neutral factfinder is defined by the Parham Court as an “independent” decision maker who will probe the child's background and make a psychiatric evaluation about the need for institutionalization using all available sources, including but not limited to parents, schools, and other social agencies, and an interview with the child. Id. at 606-07.

5 Id. at 606.

6 Id. at 613.

7 The due process clause of the fourteenth amendment to the United States Constitution states in relevant part, “nor shall any State deprive any person of life, liberty or property, without due process of law … .” U.S. CONST, amend. XIV, § 1.

8 Perry v. Sindermann, 408 U.S. 593 (1972); Morrissey v. Brewer, 408 U.S. 471 (1972).

9 Morrissey v. Brewer, 408 U.S. at 481. See also Fuentes v. Shevin, 407 U.S. 67 (1972).

10 Morrissey v. Brewer, 408 U.S. at 481; Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961).

11 Matthews v. Eldridge, 424 U.S. 319 (1976); Morrissey v. Brewer, 408 U.S. 471 (1972).

12 See generally STONE, MENTAL HEALTH AND LAW: A SYSTEM IN TRANSITION 43-80 (1975).

13 See, e.g., MASS. GEN. LAWS ANN. ch. 123, §§ 7-8 (West 1978).

14 O'Connor v. Donaldson, 422 U.S. 563, 576 (1975).

15 Id. at 575; Jackson v. Indiana, 406 U.S. 715, 738 (1972).

16 Addington v. Texas, 441 U.S. 418 (1979); Humphrey v. Cady, 405 U.S. 504 (1972).

17 Addington v. Texas, 441 U.S. 418 (1979); O'Connor v. Donaldson, 422 U.S. at 580 (Burger, C.J., concurring); Specht v. Patterson, 386 U.S. 605 (1967). See also Rone v. Fireman, 473 F. Supp. 92 (N.D. Ohio 1979).

18 See Note, Lessard v. Schmidt: Due Process and Involuntary Commitment, 68 Nw. U.L. REV. 585, 607 (1973).Google Scholar

19 Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Grannis v. Ordean, 234 U.S. 385, 394 (1914).

20 441 U.S. 418 (1979).

21 Id. See also Spaulding, Post-Parham Remedies: The Involuntary Commitment of Minors in Virginia After Parham v. J.R., 13 U. RICH. L. REV. 695, 722 (1979), which interprets Addington as requiring “the full panoply of procedural safeguards provided in criminal proceedings.”

22 Some federal district courts have held that a full adversary hearing is required before an adult may be committed to a mental institution. Lynch v. Baxley, 386 F. Supp. 378 (M.D. Ala. 1974); Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded on other grounds, 414 U.S. 473 (1974). One case also has held that a minor is entitled to an adversary hearing before involuntary commitment to a mental institution. Johnson v. Solomon, No. Y-76-1903 (D. Md. Aug. 17, 1979). See also The Supreme Court, 1978 Term, 93 HARV. L. REV. 60, 98 (1979); Note, supra note 18.

23 See, e.g., GA. CODE ANN. § 88-503.1 (1979).

24 See, e.g., GA. CODE ANN. §88-503.3 (1979).

25 Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976). See also In re Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967); Kent v. United States, 383 U.S. 541 (1966). But c.f. McKeiver v. Pennsylvania, 403 U.S. 528 (1971).

26 In re Winship, 397 U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967).

27 An individual under the age of eighteen will be referred to as a “minor” or a “child” throughout this Note.

28 The Georgia statute provides:

GA. CODE ANN. § 88-503.1 (1979).

29 The class was certifiedin Parham by the district court as consisting of “all persons younger than 18 years of age now or hereafter received by any defendant for observation and diagnosis and/or detained for care and treatment at any ‘facility’ within the State of Georgia pursuant to [the Georgia voluntary commitment statute.]” J.L. v. Parham, 412 F. Supp 112, 117 (M.D. Ga. 1976), rev'd sub. nom. Parham v. J.R., 442 U.S. 584 (1979).

30 GA. CODE ANN. §88-503.1 (a) (1979).

31 Id. Application for discharge of a minor may be made by the parent or guardian who sought the minor's admission. GA. CODE ANN. § 88-503.3 (1979). There is no statutory maximum period of time for which the minor may be detained. Upon reaching the age of majority, the minor may apply for his or her own release. Id.

32 J.L. v. Parham, 412 F. Supp. at 117.

33 Id.

34 J.L. died while in the custody of his father before the Supreme Court decided the case. Although J.L.'s death made his individual claim moot, the Court discussed the facts concerning him since, in part, they formed the basis for the district court's holding. Parham, 442 U.S. at 587 n.1.

35 J.L.V. Parham, 412 F. Supp. at 116.

36 Id.

37 Id. at 117.

38 Id. at 118.

39 Id.

40 Id., citing complaint at 9. Plaintiffs’ original complaint also alleged that the state had failed to provide adequate periodic review of their need for institutional care, and claimed that this was an additional due process violation. Parham, 442 U.S. at 617. However, since the district court held that appellees' original confinement was unconstitutional, and the Supreme Court reversed, the majority of the Supreme Court believed that the district court had not, considered the issue of periodic review. Therefore, the majority of the Supreme Court refused to consider the question of subsequent review of admissions decisions. Id. This was inconsistent with the holding that periodic reviews reduce the risk of error in the initial admissions decision and thus are necessary. Id. at 607. Justice Brennan, writing the dissent for himself and Justices Marshall and Stevens, argued that subsequent to admission, a full adjudicatory hearing should be held. Id. at 633 (Brennan, J., dissenting.) For a more complete discussion of the question of subsequent reviews, see Comment, Post Admission Due Process for Mentally Ill and Mentally Retarded Children after Parham v. J.R. and Secretary of Public Welfare v. Institutionalized Juveniles, 29 CATH. U.L. REV. 129 (1979).

In addition, the plaintiffs claimed that mentally ill children have a substantive right to be placed in the least drastic environment suitable to their needs. J.L. v. Parham, 412 F. Supp. at 139; Brief for Appellants at 44-54, Brief for Appellees at 62-73, Parham v. J.R, 442 U.S. 584 (1979). The professional hospital staff admitted that forty-six of the hospitalized children did not need to be hospitalized. J.L. v. Parham, 412 F. Supp. at 124. The district court held that a substantive right to have the least drastic treatment exists and ordered that these children be placed in alternative treatment settings. Id. at 139. This right was derived from cases holding that confinement for mental illness must be reasonably related to the purpose of confinement, and even if confinement is initially permissible, the confinement cannot continue when the reason no longer exists. O'Connor v. Donaldson, 422 U.S. 563 (1975); Jackson v. Indiana, 406 U.S. 715 (1972). The Supreme Court discussed the substantive due process issue briefly in a footnote. Parham, 442 U.S. at 620 n.23. In this footnote, the Court explained that requiring the placement of the forty-six children in alternative settings was a remedy for the initial deprivation of due process, not a separate substantive due process violation. Since the Supreme Court held that there was no initial deprivation of procedural due process, the Court concluded that it was unnecessary to consider the correctness of the remedy. Id. For a more complete discussion of the substantive right to treatment in the least drastic environment, see Note, Institutionalization of Juveniles: What Process is Due?, 59 NEB. L. REV. 190 (1979).Google Scholar

41 The judges were Judge Bell, Judge Bootle and Judge Owens; the opinion was by Judge Owens.

42 J.L. v. Parham, 412 F. Supp. at 139.

43 Chief Justice Burger wrote the majority opinion, and Justice Stewart concurred. Justice Brennan, joined by Justices Marshall and Stevens, concurred in part and dissented in part.

44 442 U.S. at 600.

45 Id. at 599-600 (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).

46 Id. at 600. See note 3 supra.

47 id. at 602 (citing Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Mass., 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1924)). The traditional interest in parental autonomy even gives a parent the “right to be wrong concerning the child's best interests.” Soifer, , Parental Autonomy, Family Rights and the Illegitimate: A Constitutional Commentary, 7 CONN. L. REV. 1, 45 (1974).Google Scholar However, this tradition has been eroded somewhat by recent cases. Bellotti v. Baird, 99 S. Ct. 3035 (1979) (A state may not require a minor to consult with her parents before obtaining an abortion); Carey v. Population Serv. Int'l., 431 U.S. 678 (1977) (The state may not prohibit the sale of contraceptives to minors); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976) (The state may not require the consent of a minor's parents before permitting her to obtain an abortion). These cases have recognized that in some situations, there may be inherent conflicts of interest between a minor and his or her parents. The Court failed to adequately consider the possibility of such a conflict of interest where a parent wishes to institutionalize the minor. See note 52 infra.

48 442 U.S. at 604-05.

49 Id. at 605.

50 Id. The Court failed to discuss or even mention the state's important interest in the health and safety of children which empowers the state, as parens patriae, to override parental prerogatives. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Mass., 321 U.S. 158 (1944).

51 442 U.S. at 606.

52 Id. at 604. This Note questions the validity of the presumption that parents always act in the best interests of their children, because the presumption ignores the possibility of conflicts of interest between parent and child that may arise when a parent wishes to institutionalize a child. A parent may seek to institutionalize the child due to the parent's own mental or physical strain, economic hardship, or the competing needs of family members. For some parents, institutionalization may provide a means to abandon or deny involvement With the child and to withdraw from a troubling situation. J.L. v. Parham, 412 F. Supp. at 134, 138; LIDE, FLICK & CORNELLISON, SCHIZOPHRENIA AND THE FAMILY 274 (1965); WILSON, THE RIGHTS OF ADOLESCENTS IN THE MENTAL HEALTH SYSTEM 202 (1978); Ellis, , Volunteering Children: Parental Commitment of Minors to Mental Institutions, 62 CAL. L. REV. 840, 863 (1974).CrossRefGoogle Scholar

A recent study supports the proposition that parents may seek to institutionalize a child due to economic hardship. The study examined the 1973 Pennsylvania Department of Public Welfare regulation limiting parental and medical discretion in hospitalization of children for mental illness. Meisel, & Roth, , The Child's Right to Object to Hospitalization: Some Empirical Data, 4 J. PSYCH & L. 377 (1976).Google Scholar This regulation gave children between the ages of thirteen and seventeen the right to object to their hospitalization. PENN. DEPT. OF PUBLIC WELFARE, Additional Procedural Safeguards for Juveniles Admitted to Institutions, 3 PA. BULL. 1840 (1973). Although the findings were not conclusive, the data suggested that the frequency of child objections was correlated with low family income. Meisel & Roth, supra, at 384. This indicates the possibility that families who are financially unable to care for their children may try to case their financial problems by putting a child in an institution. See also J.L. v. Parham, 412 F. Supp. at 134; Brief for Appellees at 39, Parham v. J.R., 442 U.S. 548 (1979).

53 See J.L. v. Parham, 412 F. Supp. at 133; Bartley v. Kremens, 402 F. Supp. 1039, 1047-48 (E.D. Pa. 1975), vacated and remanded, 431 U.S. 119 (1977).

54 442 U.S. at 602.

55 Id. at 606; See note 4 supra for the Court's definition of neutral factfinder.

56 442 U.S.at 607.

57 Id. at 613.

58 Id. at 606. The Court mentioned that staff physicians only devote 47 percent of their time to direct patient care. The Court suggested that a consequence of increasing procedural protections would be to further divert mental health professionals from the treatment of patients.

59 Id. at 610. The Supreme Court, in Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976), stated that this was inadequate justification in situations where the family structure is already fractured. Id. at 75. When a parent wishes to institutionalize a child the family structure already may be severely fractured. This risk, therefore, may not have been an appropriate one for the Supreme Court to stress in this situation.

60 442 U.S. at 616-17. The Court recognized that some individuals may have been admitted erroneously, but it believed that the statute was not per se unconstitutional. The Court remanded the case for further consideration of individual claims that persons had been erroncously admitted to the institutions in violation of the statute. Id.

61 Id. at 609. See also O'Connor v. Donaldson, 422 U.S. 563 (1975); Bazelon, , Institutionalization, Deinstitutionalization and the Adversary Process, 75 COLUM. L. REV. 897, 900 (1975)CrossRefGoogle Scholar; Bezanson, , Toward Revision of Iowa's Juvenile Commitment Laws: Thoughts on the Limits of Effective Government Intervention, 63 IOWA L. REV. 561, 588 (1978)Google Scholar; Ellis, supra note 52, at 866; Ennis, & Litwach, , Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom, 62 CAL. L. REV. 693, 711-19 (1974)CrossRefGoogle Scholar; Livermore, , Malmquist, & Meehl, , On the Justification for Civil Commitment, 117 U. PA. L. REV. 75, 83 (1968)CrossRefGoogle Scholar; Note, The Role of Counsel in the Civil Commitment Process: A Theoretical Framework, 84 YALE L.J. 1540, 1553-54 (1975).CrossRefGoogle Scholar

62 442 U.S. at 613.

63 Id. at 611-12. See note 147 infra.

64 See Meyer v. Nebraska, 262 U.S. 390 (1923); Comment, Minor's Consent to Medical Care: the Constitutional Issues in Oklahoma, 12 TULSA L. J. 512 (1977).Google Scholar

65 At common law, the age of majority was twenty-one. Comment, supra note 64, at 512.

66 Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941); Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 469 P.2d 330 (1970); Comment, supra note 64.

67 See Paul, , Legal.Rights of Minors to Sex Related Medical Care, 6 COLUM. HUMAN RIGHTS L. REV. 357 (1974)Google Scholar; Wadlington, , Minors and Health Care: The Age of Consent, 11 OSGOODE HALL L. J. 115 (1973)Google Scholar; Comment, supra note 64.

68 Bellotti v. Baird, 99 S. Ct. 3035 (1979); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976). See notes 78-79 infra and accompanying text.

69 Paul, supra note 67, at 362; Comment, supra note 64, at 514. See Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. at 300-01, 469 P.2d at 337-38; Smith v. Seibly, 72 Wash. 2d 16, 21-22, 431 P.2d 719, 723 (1967).

70 Smith v. Seibly, 72 Wash. 2d at 21, 431 P.2d at 723.

71 Paul, supra note 67, at 362; Wadlington, supra note 67, at 119.

72 Bonner v. Moran, 126 F.2d at 123; Younts v. St. Francis Hosp. & School of Nursing Inc., 205 Kan. at 301, 469 P.2d at 337-38. See also Comment, supra note 64, at 515.

73 The legal doctrine of “informed, consent” requires physicians to inform their, patients, prior to treatment, of all material information needed to make a rational choice between alternative therapies. Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972); Cobbs v. Grant, 8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972).

74 Paul, supra note 67, at 362; Comment, supra note 64, at 515 n.18, See Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. at 300, 469 P.2d at 337.

75 See, e.g., Younts v. St. Francis Hosp. & School of Nursing, Inc., 205 Kan. 292, 469 P.2d 330 (1970) (Seventeen-year-old girl's consent to minor emergency surgery on her finger was valid); Lacey v. Laird, 166 Ohio St. 12, 139 N.E.2d 25 (1956) (Eighteen-year-old girl's consent to plastic surgery was valid).

76 Smith v. Seibly, 72 Wash. 2d 16, 431. P.2d 719 (1967) (Eighteen-year-old married minor's consent to vasectomy was valid).

77 Carey v. Population Serv.Int'l, 431 U.S. 678 (1977).

78 Bellotti v. Baird, 99 S. Ct. 3035 (1979); Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976).

79 428 U.S. 52 (1976).

80 99 S. Ct. 3035 (1979).

81 Id.

82 16 Md. App. 209, 295 A. 2d 238 (1972).

83 Id. at 218, 295 A.2d at 246.

84 J.L. was twelve years old and J.R. was thirteen when the suit was initiated. See notes 32-36 supra and accompanying text.

85 See note 29 supra.

86 442 U.S. at 604. See note 29 supra.

87 Id.

88 GA. CODE ANN. § 88-503.1 (1979).

89 See note 68 supra and accompanying text.

90 99 S. Ct. at 3047.

91 Id. at 3048.

92 Parham, 442 U.S. at 626 (Brennan, J., concurring in part and dissenting in part). See also Addington v. Texas, 441 U.S. 418 (1979).

93 431 U.S. 119 (1977).

94 Bartley v. Kremens, 402 F. Supp. 1039 (E.D. Pa. 1975).

95 Mental Health Procedures Act of 1976, § 201, PA. STAT. ANN. tit. 50, § 7201 (Purdon Supp. 1978). The Act permits a person fourteen years or older to submit him or herself to examination or treatment. Parents or guardians may subject only minors under the age of fourteen to examination and treatment. Under § 7206 of this act, a minor fourteen or older, like an adult, may withdraw from treatment by giving written notice. The patient may be detained for only 72 hours following notice. Any subsequent detainment must be based on involuntary commitment procedures.

96 Kremens v. Bartley, 431 U.S. 119 (1977).

97 The Court commented that:

Id. at 135.

98 Id. at 135-36. Following remand, the district court found the new statute to be unconstitutional, and the Supreme Court considered the new statute in Secretary of Pub. Welfare of Penn. v. Institutionalized Juveniles, 442 U.S. 640 (1979). The Court found that the new statute was constitutional. Id. See also note 2 supra.

99 Other courts and law review commentary also have recognized this distinction. In In re Roger S., 19 Cal. 3d 921, 569 P.2d 1286, 141 Cal. Rptr. 298 (1977), the California Supreme Court held that, under both the California Constitution and the U.S. Constitution, minors fourteen and older have the right to a pre-commitment hearing before a neutral factfinder. Id. at 939, 569 P.2d at 1297, 141 Cal. Rptr. at 309. Unlike Parham, however, state hospital personnel did not qualify as neutral factfinders. Id. at 936, 569 P.2d at 1295, 141 Cal. Rptr. at 307. See also Bezanson, supra note 61, at 651.

100 See Amicus Brief for the Am. Psychiatric Ass'n et al at 27, Parham v. J.R., 442 U.S. 584 (1979).

101 GA. CODE ANN. § 88-503.1 (1979).

102 Id. A minor who applies for admission independently retains the right to seek his or her own discharge. GA. CODE ANN. § 88-503.3 (1979).

103 In re Smith, 16 Md. App. 209, 295 A.2d 238 (1972) (A minor who is legally competent to consent to an abortion may not be compelled to have one).

104 30 Conn. Supp. 320, 313 A.2d 886 (1973).

105 Id. at 325, 313 A.2d at 889. The court did not decide whether a parent may commit a minor sixteen or older under the voluntary commitment statute. Id. at 325 n.4, 313 A.2d at 889 n.4.

106 Spaulding, supra note 21, also concludes that Bellotti, and Danforth suggest that the state should respect the decision of a mature minor. Id. at 726-27. The amicus brief for the American Psychiatric Association also suggest this conclusion. Amicus Brief for the Am. Psychiatric Ass'n et al at 26-27, Parham v. J.R., 442 U.S. 584 (1979).

107 Addington v. Texas, 441. U.S. 418 (1979); Specht v. Patterson, 386, U.S. 605 (1967). See notes 16-26 supra and accompanying text.

108 Precisely what protections must be afforded to adults at involuntary commitment procedures is unclear. The cases indicate, however, that a hearing before a judge or administrative hearing officer and the right to counsel probably would be minimum requirements. See Addington v. Texas, 441 U.S. 418 (1979); Specht v. Patterson, 386 U.S. 605 (1967). See also notes 16-26 supra and accompanying text.

109 GA. CODE ANN. § 88-503.1 (1979). A child may become a ward of the state when his or her parents die or abandon the child, or the parents may relinquish their control to the state because they cannot care for the child. See, e.g., GA. CODE ANN. § 99-214 (1979). A child also becomes a ward of the state when he or she is adjudged to be a delinquent and is committed to the Children and Youth Division of the Department of Human Resources. GA. CODE ANN. § 99-213 (1979).

110 442 U.S. at 617-18.

111 Id. at 618. The Supreme Court did concede, however, that the lack of parental concern may require that a ward's need for continuing care be reviewed more carefully than that of a child with natural parents. Id.

112 See note 52 supra.

113 442 U.S. at 602.

114 Id. at 604.

115 Id. at 618.

116 See notes 44-63 supra and accompanying text.

117 See note 59 supra and accompanying text.

118 It appears that J.L. was a child in this situation. Foster care was recommended for him, but an appropriate home could not be found, so he remained in the institution. 442 U.S. at 590.

119 431 U.S. 816 (1977) (Statutory procedures that do not entitle a foster family to a hearing before a foster child is removed from the foster home are constitutionally adequate).

120 Id. at 845-47.

121 Id. at 843.

122 Id. at 845.

123 Id.

124 Id. at 817.

125 442 U.S. at 638 (Brennan, J., concurring in part and dissenting in part) (citing O'Connor v. Donaldson, 422 U.S. 563 (1975); Wisconsin v. Yoder, 406 U.S. 205 (1972)).

126 See note 108 supra and accompanying text.

127 The amicus brief of the American Psychiatric Association also suggested that adversary hearings be provided before a ward of the state is committed, that the dangers of adversary hearings, such as the risk to the parent-child emotional relationship, are not compelling when a state agency, rather than a parent, seeks the admission, and that the interest in parental integrity and the assurance of parental responsibility to minimize risks of abuse are not present in such cases. Amicus Brief for the Am. Psychiatric Assn'n et al at 25-26, Parham v. J.R., 442 U.S. 584 (1979).

In addition, a recent district court case also suggests that due process protections for state wards should be greater than the protections provided for other minors. In Johnson v. Solomon, No. Y-76-1903 (D. Md. Aug. 17, 1979), a court held that due process required a full adversary hearing before a minor could be committed pursuant to an involuntary commitment statute. The court distinguished Parham on the grounds that when a state commits a child, more independent, adversary type review of commitment is required because one cannot assume the same sort of care and concern to be forthcoming from the state as from a loving parent, and there would be no possible intrusion of the adversary system into the sensitive parent child relationship. Id., slip op. at 23-24.

128 This discussion does not apply to mature minors or minors who are wards of the state. For a discussion of the rights of mature minors, see notes 84-108 supra and accompanying text. For a discussion of the rights of state wards, see notes 109-27 supra and accompanying text.

129 The decision, however, is inconsistent with most state and lower federal court decisions concerning the due process rights of minors committed to institutions pursuant to voluntary commitment statutes. See In re Roger S., 19 Cal. 3d 921, 569 P.2d 1286, 141 Cal. Rptr. 298 (1977) (A minor fourteen or older must be afforded a precommitment hearing before a neutral factfinder before being institutionalized for mental illness; examination of the minor by a local agency and hospital personnel prior to admission was, not sufficient). See also Saville v. Treadway, 404 F. Supp. 430 (M.D. Tenn. 1974) (Provisions allowing a parent, guardian, or person having legal custody of a mentally retarded minor or adult to place the individual in an institution without restriction and with release available only with the consent of the superintendent was unconstitutional); N.Y., State Ass'n for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). (Mentally retarded minors may not be “voluntarily” committed by a third party; a petition for “voluntary admission” by parents may be treated as an “involuntary admission”, and requires notice and a hearing). But see In re Long, 25 N.C. App. 702, 214 S.E.2d 626 (1975) (Confining minors to mental institutions upon application of a parent or guardian is permissible when the minor is examined within 24 hours).

130 Prince v. Mass., 321 U.S. 158 (1944).

131 419 U.S. 565 (1975).

132 387 U.S. 1 (1967).

133 See also Ingraham v. Wright, 430 U.S. 651 (1977). The court in Ingraham upheld a Florida statute that permitted corporal punishment of schoolchildren. The court held that due process does not require an adversary hearing in this situation, and that procedures requiring the teacher and the principal to exercise prudence and restraint are sufficient. The court believed that since teachers generally witness the conduct that children are punished for, the risk of error is small. The additional fact that the teacher and principal can be subjected to civil and criminal penalties if punishment is found to be excessive also protects the child. Id. at 677-78. Finally, the court believed that the burden of a prior hearing would outweigh any benefit in this situation. Id. at 682.

134 In re Gault, 387 U.S. at 24, 27 (1967).

135 See, e.g., GA. CODE ANN. § 99-213 (1979).

136 In re Gault, 387 U.S. at 24.

137 See, e.g., GA. CODE ANN. § 88-503.3 (1979).

138 442 U.S. at 606.

139 See note 4 supra.

140 As previously noted, mature minors and state wards should be afforded additional due process protection. See notes 84-127 supra and accompanying text.

141 See note 4 supra.

142 397 U.S. 254 (1970).

143 Id. at 271.

144 Ellis, supra note 52, at 864-70.

145 Id. at 868. See also SCHEFF, BEING MENTALLY ILL: A SOCIOLOGICAL THEORY 147 (1971).

146 See Ellis, supra note 52, at 868.

147 Since the Court adopted the presumption that parents will act in the best interests of their children, the physician, as a neutral factfinder, should be able to rebut this presumption. The physician may not always recognize cases where the parents are not acting in the child's best interests; and, even if the physician does believe that the parents are not acting in the child's best interests, it is not clear what the physician can do. If the parent wishes to hospitalize. the child, and the child is not mentally ill, the parent may be abandoning the child, and the home may be a dangerous and unhealthy environment for the child. When the physician's only options are to send the child back into the family or to keep the child in the hospital, the physician may opt to keep the child in the hospital, which at least will ensure the child's safety. If, on the other hand, a neutral factfinder with access to the courts was permitted to rebut the presumption, a wider range of choices would be available. A court, for example, could order placement of the child with a relative or a foster home.

148 See Ellis, supra note 52, at 868.

149 Id. at 865. See also Bazelon, supra note 61, at 900; Rosenhan, , On Being Sane in Insane Places, 179 SCIENCE 250 (1973)CrossRefGoogle Scholar (Reprinted in 13 SANTA CLARA LAW. 379 (1973)); Scheff, supra note 145, at 105-21. For a discussion of studies indicating the uncertainty involved in psychiatric diagnosis, see Note, Institutionalization of Juveniles: What Process is Due?, 59 NEB. L. REV. 190, 201-02 (1979).Google Scholar

150 Spaulding, supra note 21, also concludes that the.Court's holding that a staff physician is a neutral factfinder is erroneous. Mr. Spaulding suggests that the decision to commit a child is not entirely a medical decision, and that the Court's decision permits the physician to have too much discretion. Id. at 728-33. In addition, Mr. Spaulding argues that the cost of erroneous commitments that may occur without judicial hearings, along with the cost of the medical due process required by Parham, may be more expensive than the judicial hearings sought by the plaintiffs in Parham, and not,less less expensive as the Parham Court believed. Id. at 734-35. See also The Supreme Court, 1978 Term, 93 HARV. L. REV. 60, 95-96 (1979).

151 Ellis, supra note 52, at 881, 888-90.

152 Bezanson, supra note 61, at 595-600.

153 Social workers and child case workers at existing community mental health and family service centers could serve as independent mental health professionals. Cases could be assigned to different professionals as they arise, so that one professional is not doing all of the commitment investigations, which could destroy his or her neutrality. Although there may be problems with the practical application of this proposal—the professionals may be inclined to defer to the psychiatrist, may not spend sufficient time investigating the case, or may become associated with and feel responsible toward the hospital—the proposal certainly offers more protection to minors than current practices.

154 See notes 144-47 supra and accompanying text.

155 See notes 148-49 supra and accompanying text.

156 See note 147 supra.

157 If the mature minor did not consent to hospitalization and the parents still believe that hospitalization is necessary, the parents could institute involuntary commitment procedures. Spaulding, supra note 21, at 727, also suggests this solution. See notes 16-26 supra and accompanying text.

158 See notes 16-26 supra and accompanying text.

159 19 Cal. 3d 921, 569 P.2d 1286, 141 Cal. Rptr. 298(1977).

160 Id. at 939, 569 P.2d at 1297, 141 Cal. Rptr. at 309. Roger S. did not apply to minors younger than fourteen, but the courtin that case did not preclude its application to younger minors; it simply did not decide the issue since the issue was not before it. 19 Cal. 3d 921, 569 P.2d 1286, 141 Cal. Rptr. 298 (1977).

161 id. at 937, 569 P.2d at 1296, 141 Cal. Rptr. at 308.

162 The court based its decision on Article 1 § 7(a) of the California Constitution, which states: “[a] person may not be deprived of life, liberty or property without due process of law … .” See In re Roger S., 19 Cal. 3d at 927, 569 P.2d at 1289, 141 Cal. Rptr. at 301.

163 C.A. No. C2030 (Colo. D. Ct. April 11, 1979).

164 COLO. REV. STAT. 27-10-103(3) (1973).

165 Mental Health Procedures Act of 1976 § 201, PA. STAT. ANN. tit. 50 § 7201 (Purdon 1978). See note 95 supra.

166 Writs of habeas corpus are available in both state and federal courts on the grounds that detention in a mental institution is unlawful. See, e.g., Rawls v. Daughters of Charity of Saint Vincent De Paul, Inc., 491 F.2d; 141 (5th Cir. 1974); Perkins v. U.S. Fidelity and Guaranty Co., 433 F.2d 1303 (5th Cir. 1970); Von Luce v. Rankin, 267 Ark. 34, 588 S.W.2d 445 (1979); In re Roger S., 19 Cal. 3d. 921, 569 P.2d 1286, 141 Cal. Rptr. 298(1977).

167 442 U.S. at 616 n.22.

168 Georgia law provides that at any time and without notice, a person detained in a facility, or a relative or a friend of such a person, may petition for a writ of habeas corpus to question the cause and legality of the detention of the person. GA. CODE ANN. § 88-502.14(a) (1979).

169 O'Connor v. Donaldson, 422 U.S. 563, 576 (1975).

170 In Massachusetts, an attorney is appointed to consult with every person admitted under the state's voluntary commitment statute. This attorney could assist a person in a habeas corpus proceeding. MASS. ANN. LAWS ch. 123, § 10 (Michie/Law. Co-op Supp. 1980).