Parham v. J. R. – Oral Argument – December 06, 1977

Media for Parham v. J. R.

Audio Transcription for Oral Reargument – October 10, 1978 in Parham v. J. R.

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Warren E. Burger:

We will hear arguments next in 1690, Parham against J.L. and J.R. minors.

Mr. Lackey I think you may proceed, but before you proceed in case you were not in hearing when I announced that Mr. Justice Brennan is unavoidably detained for parts of these cases, but will participate in consideration and decision on the record of course, you may proceed.

R. Douglas Lackey:

Mr. Chief Justice, may it please the Court.

This case comes to this Court from the United States District Court for the Middle District of Georgia.

At issue is the constitutionality of the Georgia Statute, which recognizes the right of parents and guardians to make application for admission of their minor children to State Mental Health facilities.

This law suit is predicated upon two grounds, the first ground is that these children have a constitutionally protected right to challenge their parent’s medic decisions as to what medically indicated treatment will be provided to children and that the challenge statute here which provides for neither notice nor hearing before hospitalization deprives them of that right with that due process of law.

The second ground is that mentally ill children have a constitutional right when they receive state treatment from the State, to receive that treatment only in the treatment setting which is most appropriate to their condition.

This law suit was brought by two boys age 12 and 13 at the time of this litigation.

Each had been in state mental health facility for over five years, each had been admitted under the Challenge Code Section one by his parents, the other by his guardian and State Agency.

At the time of the trial of the litigation we admitted that these two boys as well as 44 other children who were then in the mental health facility could be treated for their condition in other facilities which we considered more appropriate.

Two facts which do not appear in the record, but which I want to bring to Court’s attention is that one of the plaintiffs is now deceased J.L. the other is that, some of these children are still in the hospital.

The District Court in essence agreed with appellees on both grounds, finding that in fact the children have a liberty interest and that they were deprived of it by the operation of this statute and finding that the children had a substantive due process right which was violated by the operation of the statute.

There are in essence two issues before the Court then, the first is whether these children are entitled to procedural due process rights and whether they receive it under statue and the second is whether the children have a right if they are to receive treatment from the State to receive that treatment only in the best facility, turning to the first issue —

Warren E. Burger:

I thought earlier you had said something to the effect that the request, the demand was for treatments suitable to their needs or something that effect, now you mean that to be the same as the best treatment available?

R. Douglas Lackey:

The language that the District Court used was the treatment setting most appropriate to the child’s condition and we interpret that to being the best, that anything less than the best would not be the most appropriate.

Warren E. Burger:

Do you read the District Court’s decree as to the 46 individuals with whom it entered specific instructions as to placement to foreclose this State from simply releasing them entirely.

R. Douglas Lackey:

No sir, I do not.

Warren E. Burger:

I maybe getting this case confused with preceding case, is there any claim for damages on the behalf of the children against the parents.

R. Douglas Lackey:

Yes sir, the complaint asked for $10,000 damage for each child, the District Court did not address that issue.

Warren E. Burger:

From the parents?

R. Douglas Lackey:

No from State, from the State employees.

Warren E. Burger:

But they are not asking for damages against their parents for the decisions and actions of the parents?

R. Douglas Lackey:

No sir, the parents are not parties to this law suit.

They are in essence with respect to the procedure due process issue, three sub issues, one of which the Court itself advanced that being the question of State Action here.

The other two are the question of whether a child in fact has a liberty interest in this situation and if a child does have liberty interest there is State Action what processes do.

Turning first to the liberty interest we look to the District Court’s analysis of the case the District Court said in essence that children have a liberty interest for the Supreme Court of United States said so in its decision in the case of Henry Goll (ph).

Hospitalization is a massive curtailment of that liberty for again the Supreme Court said so in Humphrey versus Cady.

The District Court then put the two together and concluded that these children were deprived of liberty interest or that due process of law.

Our position is, is that the District Court’s analysis is flawed because the District Court focused on the wrong interest.

It is a fundamental or a threshold issue that in any litigation where what is challenged or what is alleged is a deprivation of a constitutionally protected interest that you must look to the interest itself to see whether in fact it can be fairly said as in this case to fall within the diameter of the Fourteenth Amendment.

R. Douglas Lackey:

Well we suggested the Court that the interest is here is the interest in the child to challenge his parent’s medically indicated decision, for that is exactly what the District Court is allowing the child to do by asserting that the child is deprived of the liberty interest by being hospitalized.

It is our position that this analysis is inconsistent with the inferences that can be drawn from this Court’s opinions, State Court decisions as well as the history of western civilization.

In our civilization in our society we have determined that children cannot make certain decision for themselves.

One of these decisions that we — one of these area in which we have made this determination is in the area of selecting medically indicated treatment both at common law and in case law of this country, we have said that parents select medically indicated treatment for there children, their children do not select that treatment themselves.

Thurgood Marshall:

There is a difference between mental and ordinary hospitals.

Is there a difference?

R. Douglas Lackey:

Yes sir, there is a difference.

Thurgood Marshall:

For example in the mental hospital you are restrained.

R. Douglas Lackey:

Yes sir, you are restrained in a sense there is no denying that.

I think the record in this case discloses —

Thurgood Marshall:

That the parent has right to restrain the child.

R. Douglas Lackey:

Well a parent has the right to restrain a child independent of this case, but I think what the record discloses here —

Thurgood Marshall:

For how long?

R. Douglas Lackey:

I suppose parents restrain children until they reach their majority.

Thurgood Marshall:

You could not restrain the child entering the school.

R. Douglas Lackey:

No that is correct, you could not.

Thurgood Marshall:

So it is not that broad, is it?

R. Douglas Lackey:

It is not absolute, of course not —

Thurgood Marshall:

Of course you do recognize the difference between the families right to see that a child’s tonsils are taken out, as contrasted to being committed for rest of his life.

R. Douglas Lackey:

I can see a difference in those two extremes certainly Your Honor.

I would suggest that what I am — the point I am trying to make here, quite honestly Sir is that if there is a liberty interest in the child at all to challenge his parent’s decision to hospitalize him.

That liberty interest must cut completely across the whole spectrum.

It is not plausible to say that a constitutional right exist in a child when the child’s parents wants to place him in a mental hospital.

Well you do not suggest — I take it you do not suggest maybe you do, the parent’s consent or decision is sufficient in itself.

R. Douglas Lackey:

I am sorry Sir, I did not understand your question.

Your submission that the child that the lacks liberty interest to such an extent that the parent’s decision standing alone is enough.

R. Douglas Lackey:

No in this circumstance the parent’s decision standing alone is not enough in actuality in any case where what we are speaking of is medically indicated treatment the parent’s decision is not enough the State —

What else must there be besides the parent’s decision to hospitalize the child?

R. Douglas Lackey:

In this specific case there must be the concurrence of a physician that what the parent desire for the child is actually what is in the child’s best interest.

So somebody should look over the shoulder of the doctor and the parent or not?

R. Douglas Lackey:

Our position is that no one should look over the shoulder of the doctor and the parent or the doctor.

Together, if they act together.

R. Douglas Lackey:

Pardon me Sir.

If they act together.

R. Douglas Lackey:

If they act together.

Thurgood Marshall:

And this physician could be an obstetrician?

R. Douglas Lackey:

Yes Sir.

The law in Georgia and in most of the States makes no difference between different practitioners of medicine, it simply defines them as physicians.

Thurgood Marshall:

So I mean obstetrician can say this child is dangerous and needs mental treatment.

R. Douglas Lackey:

No Sir he would not have to say that the child is dangerous, all he had to say is that the child is mentally ill and suitable for treatment.

Thurgood Marshall:

And he therefore got to — well he is in still an obstetrician.

R. Douglas Lackey:

Yes, Sir he could be an obstetrician.

Warren E. Burger:

What is done in practice as a matter of fact do they use obstetricians for this propose?

R. Douglas Lackey:

No Sir, they do not.

Warren E. Burger:

Going back to this dichotomy between the mental and other disease.

If a parent puts a nine year old child in the hospital to have his appendix or tonsils taken out.

Do you suggest that, that child could be released from the hospital by anyone except the consent of the parents on the hospital.

R. Douglas Lackey:

No Sir and I do not think that, that surgery could be authorized by anyone other than the parents or if the Court found that the parents were acting bad faith and denying the child the treatment he needed of course the Court could.

Warren E. Burger:

And if the hospital let the child out on the child’s request, while still under care in the recuperative stages from the surgery, the hospital would surely be exposed to malpractice suit, will they not?

R. Douglas Lackey:

Yes, Your Honor, I would excepted that they would lose.

Warren E. Burger:

The hospital does not release any minor without the signature of the parent when the child has been in the hospital for treatment is it not that so?

R. Douglas Lackey:

I believe so.

Thurgood Marshall:

Do you know the law in Georgia is on that —

R. Douglas Lackey:

The law in Georgia requires — I am sorry I do not have this specific cite I think it is 8819 Federal 88 Chapter 19, has a consent law and requires the consent of the parents before medical treatment can be rendered to children.

Georgia Code Section 74 —

Thurgood Marshall:

And before they can be released from the hospital.

R. Douglas Lackey:

Georgia Code Section 74 of 104 makes parents explicitly responsible for the welfare and care of their children and I — there is no law that says before a hospital can release a patient.

I am sorry I am going around your question Sir —

Thurgood Marshall:

I do not want you to get out of what you did not know what you are talking about you could say.

R. Douglas Lackey:

There is no question that I cannot say and I do not believe that there is a law that says, that with respect to any facility a hospital has to have parent’s permission, there is a law here that says that if the child wants to leave his leaving can be conditioned upon the consent of his parents.

R. Douglas Lackey:

In this law suit there is actually —

Thurgood Marshall:

That is the mental law.

R. Douglas Lackey:

That is correct Sir.

Thurgood Marshall:

Which is the one that is before us.

R. Douglas Lackey:

That is correct and I am not familiar with any similar requirement in a State — medical treatment area.

Let me get back to your question or your point Mr. Chief Justice.

What our point is, is if we say that there is a liberty interest here, then similarly there is a liberty interest in that child who is going to have his tonsils taken out.

I think we perhaps used a really gruesome example in our reply brief, but I think it is appropriate and that is a situation where a parent takes a child to a physician and a physician says your child is exhibiting signs of cancer the treatment for which is the removal of his leg.

Under the very liberal definition of liberty that the District Court applied, clearly the consequence is that parental decision is going to be to deprive the child of his liberty again as the District Court has defined it and as the United States noted in its amicus brief it would be unprecedented to argue that the child has a liberty right.

A right to due process in that situation and in fact no one argues that, there are simply arguing that in this particular case mental illness.

This child has a right to due process.

No one argues that he would have that right in any other area and we suggest that, that is simply inconsistent with the way constitutional rights have been defined.

Well to put it strictly, everybody has a right to due process do they not?

If they are going to be denied a liberty of property interest, you never reach a conclusion that the due process clause is not applicable or something, you can say that what was done did not deprive them of any liberty or property.

R. Douglas Lackey:

That is correct Sir, but at the point we are and the argument right now, it is our position that a child does not have a liberty right at all.

At this point vis-a-vis his parents not vis-a-vis the State.

Constitutional rights, I believe you can say do not exist in the abstract they exist because of relationships.

You might say that there is a constitutional rights when you got the parents or the Child versus State as in the case of Henry Goll, we are talking about the parent and the child and the parent making the decision for the child, we say that there is no liberty interest and that is where the Court should have focused first and did the District Court.

Thurgood Marshall:

But general– why not to narrow it, the child still has some liberty rights.

You just talked about the one liberty that is involved here.

R. Douglas Lackey:

Yes Sir, that is correct.

Thurgood Marshall:

You keep broadening it out and I would not broaden it too much.

R. Douglas Lackey:

I certain would not intend to say that the child does not have any liberty interest.

Only a liberty interest not to challenge his parents medically indicated decisions, that is how nearly I want to define it and I do not mean to broaden it any more.

However even if the Court decides that in fact there is a liberty interest here that could be protected, the second question is the one that was advanced by the Court itself and that is why there is, whether or not some State Action involved in this case.

Now the best way to address the State Action question from our perceptive is to consider what this Court said Burton versus Wilmington Parking Authority and that is that you have to look at the case and set the facts and circumstances to determine will there be a State Action here.

What we can say is that the challenge statute here does not authorize parents to provide medically indicated treatment for their children.

It does not encourage it, we do not go out and seek the children.

The best characterizations of what we do is we provide a resource and that is it.

We provide resource just as any private hospital would be a resource.

R. Douglas Lackey:

We simply are fulfilling a proprietary function in this case and as I said our position is, is that it ought to be looked at from a practical stand point it seemed impractical —

But, you would not take the child just on the say-so of the parent and the parent’s doctor.

R. Douglas Lackey:

That is correct Sir, we will not.

So you go through still a further procedure.

R. Douglas Lackey:

The way we have characterized it is, that we do in fact have a gatekeeper.

We do in fact have a gatekeeper.

But what we do is we decide that —

And you decide that is how that is medically indicated to or that treatment is indicated.

R. Douglas Lackey:

That is correct.

We decide that the child meets the criteria of being mentally ill and suitable for the treatment, but of course that is the same function that any doctor provides in any hospital and what we are saying is that it seems illogical to say that if a parent has money, if he has assets, if he has resources, he can go to a private facility and if the psychiatrist or the physician or the whatever agrees with him, he can put his child in that hospital without going to a Juvenile Court proceeding.

Without going through an adversarial hearing, but if he does not have the money, if he does not have the assets, we are going to make him go to an adversarial proceeding.

If he has to go to a Juvenile Court get a lawyer, get a lawyer for his child or the Court will point him of course.

Ask to your gatekeeper, he can say no as to admission to a State facility for the parents and their doctors have said yes.

But he can not say yes if the parents or their doctors say no.

R. Douglas Lackey:

That is correct.

That is really follows from what the Court said in Jackson versus Metropolitan Edison what we are doing is we are allowing a choice, that the parent has to initiate.

The parent has to initiate the action or the guardian has to initiate the action that leads child to the hospital.

Warren E. Burger:

What due process protection does the child have in your view, if the parents are affluent and simply take the child to their own private psychiatrist or child specialist and that doctor recommends commitment and the commitment takes place in a private hospital.

Any hearing —

R. Douglas Lackey:

That child receives absolutely nothing. He does what his parents tell him, and the parents of course decide what to do based on the doctors advise.

I think that is our main point that if in that case that parent can put that child in that hospital, but here he is going to have go through an adversarial process to achieve the same result which is simply to get mental health treatment for his mentally ill child.

The set —

Thurgood Marshall:

In the private hospital, it also a subject to Habeas Corpus, is it not?

R. Douglas Lackey:

Yes Sir, and I think that the law would allow you to challenge the place and the reason for your attention even in a private facility.

Warren E. Burger:

And if apart from that what would you think about the claim of the child, that he was wrongfully committed for wrongful, improper reasons in a malpractice suit against the physician.

R. Douglas Lackey:

He would certainly have a false imprisonment suit against the physician.

He could not sue his parents in Georgia.

Warren E. Burger:

Even if he did not have one against his parents.

R. Douglas Lackey:

That is correct.

Because of the existence of that possible liability do not the private institutions follow precisely the same procedure as the State institutions does.

Do not they examine before they admit.

R. Douglas Lackey:

Yes Sir —

So what it the discrimination?

R. Douglas Lackey:

The discrimination that I was addressing if it exist at all is one based on wealth of course and it is simply the —

But the wealthy person must have — the wealthy parent can commit the child if the parent of the committing institution — I mean if the doctor of the committing institution will receive the child.

That is exactly what happens here, but you are saying that will continue to be the case whereas the District Court changed the rule for the Court.

R. Douglas Lackey:

If the District Court orders stands unchanged that will be not be the instance with respect to the public hospitals, they will continue to be so with the private hospitals.

There would be no reason for them to change the as they are (ph).

The second issue with the respect to State Action of course is what happens once the child is in.

I just want to briefly touch that and make the point that we made in our brief that our position is, is that once that child is in the facility as long as he continues to meet the minimum criteria, we simply act as does any custodian of the child, that the parents has entrusted his child to, we release the child when the parents wants the child.

We do not release the parent — assuming these minimal conditions are met with the child, if parent wants the child to stay in.

Even if the Court finds that there is a liberty interest in State Action here of course, we still got the issue of what process is due.

Now, one of these named plaintiffs; now I realize one of the them is now deceased, but some members of this class were committed at the behest of the State as guide —

R. Douglas Lackey:

That is correct sir.

And in that category, it clearly is State Action I suppose, the State initiates it.

R. Douglas Lackey:

I concede State Action.

You did concede it.

R. Douglas Lackey:

Yes Sir.

So really your argument is at a moot is it not?

R. Douglas Lackey:

Well Sir, If I lose the argument on the children who are placed by State Agencies and prevail on the State Action on those children that are not I would have succeeded since the vast majority are admitted by their parents.

Warren E. Burger:

Right, well even when the parents bring the child to the hospitals as soon as the State employed physician, psychiatrists enters the and participates in the commitment would you say that is or is not State Action.

R. Douglas Lackey:

I would say that, that is of course State Action.

I would say that it does not rise to the level necessary to implicate the Fourteenth Amendment.

Warren E. Burger:

But if it is a State Action of that stage.

R. Douglas Lackey:

I cannot deny, that a State Action of the State —

Warren E. Burger:

In the same way that a State Action and if the State was proceeding as a guardian Ad litem for the child.

R. Douglas Lackey:

There is a different level a different quantum of State Action, but yes sir, State Action —

But it is part of your position and that participation by the State namely the doctor of the institution takes a look at the child.

That is an essential condition to the deprivation of liberty, assuming it is a deprivation, assuming it is a liberty —

R. Douglas Lackey:

Assuming it is a deprivation it cannot be accomplished without the physician’s approval.

And if it is essential because it is part of the regular procedure and are you still arguing it is not State Action?

R. Douglas Lackey:

I am saying that all – it is not a progression, the parent has already decided that the child needs to be in the hospital.

But he cannot get in the hospital unless the State examines him and says yes you can come in.

R. Douglas Lackey:

That is correct, but what the State is doing is the State is saying, it is simply affirming the parent’s decision.

But you are arguing (ph) him on the merits is it, that is an essential part of the procedure.

R. Douglas Lackey:

I agree, that is correct Sir.

And you still say it is not State Action.

R. Douglas Lackey:

It makes the State Action very difficult.

And they not only do not let him in unless they agree, but then they implement the decision.

R. Douglas Lackey:

They do not let them; that is correct they treat them, they treat them.

Even if you find that there is liberty in State Action the question is what process is due.

Our position on this is similar to Judge Relling’s (ph) and his opinion in Drummond versus Fulton County Department of Family & Children’s Services where he said due process does not require in every instance an adversarial proceeding.

It simply requires rational decision making process.

In this case what happens is, a parent decides that a child is mentally ill for one reason or the another.

He decides because of the child’s odd (ph) behavior, he decides it because physician tells him so.

He brings the child to a hospital and I am simplifying the procedure, the record clearly discloses that almost uniformly children are taken from the parents to the community mental health centers and if they can be treated as outpatients they are treated there and then only if that fails they are brought to the hospital, but I am simplifying it just for explanation.

They bring the child to the hospital, the record clearly discloses that at the hospital the child is examined by a team.

They use a team approach which may include a psychiatrist, a —

So then the parent does not necessarily come to the hospital armed already with a physician’s decision.

R. Douglas Lackey:

No that is correct Sir, he does not.

Warren E. Burger:

He may come with the family physician, but then that is subject to screening by the State authority.

R. Douglas Lackey:

That is correct.

But the State will examine the child and take the child even though there is no other medical opinion but the State’s.

R. Douglas Lackey:

That is correct, that is correct.

Thurgood Marshall:

Is it not true that, in the average case the only qualified psychiatrist is a State psychiatrist?

R. Douglas Lackey:

Yes, I would agree with that.

Thurgood Marshall:

So I mean that the ultimate decision as to the mentality of the child is made by the State doctors.

R. Douglas Lackey:

That is correct.

Thurgood Marshall:

I do not say that harms the case, no but that is true.

R. Douglas Lackey:

That is correct I do not deny that.

R. Douglas Lackey:

The point I was making is that they – it is a team approach when they come to the hospital, you have got as I said psychiatrist, psychologists social workers, mental health therapist who the record discloses contacts Schools or community, the courts, the Police to try to get a picture, they talk to the child, they talk to his parents and then they decide to admit it and that is probably our biggest difficulty here.

It just seems that is clearly a rational decision making process.

That State has no stage in admitting the child, there is no proof that the child or that the State gets anything if the child is admitted.

The records clear that we do not operate capacity in our hospitals.

The records is replete with evidence on that basis.

But even if the child is mistakenly hospitalized, even if the child’s parents have the wrong motives to bring that child to the hospital, even if the doctors just completely do the wrong thing and admit the child, the child still has access to the Courts and I think that, that ought to be considered, it has not been considered yet.

Warren E. Burger:

By what processes do you mean, Habeas Corpus for example.

R. Douglas Lackey:

Of course they have Habeas Corpus, but that is not what they need to rely on.

There are specific provision in Georgia Code Chapter 88 filed at the mental health code that the children or that any patient can go to the Probate Court of the county and claim that the chapter is being abused.

Warren E. Burger:

How does a seven-year-old child set those proceedings in motion.

R. Douglas Lackey:

Well, Your Honor I do not want to appear flip with my answer, but I would refer the Court to its decision in Bellotti versus Baird where the Court of course had an abortion decision but the Massachusetts Statute said that parents could be required to consent to the abortion of — a child could be required to get his parents consent, but if the child could not get his parents consent it could then go to the Courts and get an order.

She could then go to the Courts and get an order authorizing the abortion and it would appear that the ten, eleven, twelve year old child who is in this case would get to Court the same way the ten, eleven, twelve, thirteen year old girl would get Court in Bellotti.

The Statute, that the child need not rely especially on that.

There is also the provision in the Court that requires DHR to provide access to counsel if the patients need it.

The record will disclose and I do not think the appellee’s dispute that we provide an office space for these Attorney’s in our mental health facility and that it was our staff that referred these children to these lawyers.

I think that the system in its totality demonstrates the children cannot get into Court.

Warren E. Burger:

Let me take the reversal, Mr Justice Marshall’s hypothetical Statement suppose the family physician and two private practitioners of psychiatry bring the child to the stage and say we think the child should be committed and the State psychiatrist makes the usual examination and says no I think this child just needs outpatient treatment and I will not commit that would be the end of the matter would it not.

R. Douglas Lackey:

That is correct Sir.

Warren E. Burger:

No one could force this State to take the child.

R. Douglas Lackey:

That is correct Sir.

Thurgood Marshall:

You do not have to mandamus his family?

R. Douglas Lackey:

Yes, but you can not mandamus someone to perform a discretionary function and that is what this would be.

They could mandamus him to perhaps examine the child but they could not mandamus him to admit him.

There is one issue that I do not want to get away from, I do not want to sit down without addressing it and that is the substantive due process issue because that — I know I have spent a lot of time when the procedural question — but that is the nut of this case; that is why this case was brought in the first instance and we think that the District Court’s decision there was incorrect and has to be reversed.

What the District Court has said us in this substantive due process question, is that if a parent brings a child to a State Mental Hospital and our physician examines that child and he says, “this child is mentally ill, I can treat him in my hospital, I can give him some benefit, but if I had my choice I would give him or I would send him to group home or specialized foster home, then we cannot provide treatment for that child if we do not have that specialized foster home or that group home.

What the District Court has said is that if we are going to provide treatment for these children, we have to provide the treatment in the most appropriate treatment setting and if we do not have it we can not provide the treatment.

Now the absurdity of this is that if a parent, if an adult rather comes to our hospital, he has got Schizophrenia, paranoid type, even if he is not appropriate for hospitalization in this case they have adult foster homes.

Even if he is not appropriate for hospitalization, he can go into that hospital because he has presumed to be able to assume the risk of going into the hospital.

But under the Districts Court’s decision, if a child comes to that hospital with that exact same condition, we cannot put that child in the hospital, his parents cannot waive his constitutional rights under the Districts Court’s opinion and that child will go without a treatment until that child either degenerates the point where hospitalization is appropriate or until the parent is able to find some private care for him.

And it just does not seem to be a logical result to us and it is certainly one that should not be allowed in this case.

R. Douglas Lackey:

It just is a result that should be avoided and I know when our reply brief I accused the I think it is perhaps the wrong word, but I mentioned a parade of horribles and I do not want the Court to think that, that is what I am doing here.

Any fair reading of that District Court’s decision, particularly when coupled with the order denying the stay, makes it absolutely clear that the District Court said I find that every moment of inappropriate hospitalization of a child denies that child a substantive due process interest.

Every moment of inappropriate hospitalization and he has found that it was inappropriate when we could think of some other treatment setting that was more appropriate.

You think under the order the — I think you were asked to survey on this, State may completely release the 46 children.

R. Douglas Lackey:

Yes Sir, there is no question in my mind that we can do that.

The State has been ordered to provide them with the more appropriate setting.

R. Douglas Lackey:

No sir, but we do have a slight problem.

Some of the 46 children that were at issue here are already in our custody and that is why this issue is not — is right, I know this several amici suggested that it is not, but they obviously would not be aware of this thing that we do have custody of certain —

You have been — with respect to them you must provide the State must — has been ordered to provide different treatment setting.

R. Douglas Lackey:

The most appropriate treatment setting Sir.

Thank you.

Warren E. Burger:

Mr. Cromartie.

John L. Cromartie, Jr.:

Mr. Chief Justice, may it please the Court.

The issues in this case are very narrow although difficult, I would like in my argument to deal first with the procedural due process issue and then deal with the substantive due process issue if the Court will permit it.

Warren E. Burger:

Very specifically would you explain at least for my benefit why the presentation of the child by the parents to the State psychiatrist and the processes that then occur is not sufficient due process.

John L. Cromartie, Jr.:

Right Your Honor, we feel that the process of examination by the Superintendent is inadequate as a due process substitute for several reasons first —

Well the claim is not that it is a due process substitute, but that it is adequate under what is required by the Constitution that it is due process.

Warren E. Burger:

But it is all the process which is due, in the circumstances —

John L. Cromartie, Jr.:

Yes Your Honor, I stand corrected on that.

We feel that for several reason though it is inadequate.

First of all it is not really a hearing at all it is not processed there, there is no notice to the child of what will happen during this interview.

There is no requirement of looking at other resources in the test under the Georgia Law.

Virtually all of the information comes from the parents and later in my argument I will develop the conflicts of interest inherent between the parent and the child, that information is unverified and frequently inadequate that comes through that process in essence there is no structure whatsoever.

Secondly–

Warren E. Burger:

Are you suggesting that there is inherently and universally a conflict of interest between parent and child in this setting.

John L. Cromartie, Jr.:

We feel that there are substantial, there is a substantial chance that there are conflicts of interest between parent and child inherently, yes Your Honor and I can get into that argument there and jump from the Superintendent’s argument.

Warren E. Burger:

Continue in your own order.

John L. Cromartie, Jr.:

The Superintendent’s decision though is inadequate for number of other reasons.

The State has contented that the informality is adequate because of a comprehensive screening process that happens prior to coming to the hospital.

The State’s own witnesses established that, that screening process is inadequate Dr. Filley testified that it is not mandatory that, that screening process can be and is some times ignored.

John L. Cromartie, Jr.:

Dr. Filley testifies that the development of community screening resources are lagging far behind those of adult and finally you have the fact involving J.L. and J.R. both of them were screened by a community screening process and yet and the recommendation of their therapist was, was that they should not be hospitalized and yet that recommendation was not even considered by the admitting physician and I think that those facts go to show how inadequate that community screening process is.

Next we are relying on the fact of the uncertainty of the diagnosis that this Court has noted before in terms of psychiatrist the tentativeness of professional judgment we have expert witnesses who testify to the institutional biases, that are reflected through the decision of institutional psychiatrist and finally the District Court went to these facilities looked at the admissions process.

And they found that the admission process as setup does not provide due process protection so for all of those reasons we do not feel that the Superintendent decision is sufficient.

When you say that District Court went to the hospitals and looked at the procedures, did one or more of the judges sit in on — say an interview between the psychiatrist and the family or —

John L. Cromartie, Jr.:

I do not know of know of any interviews that they sat in on all three judges Judge Bell, Judge Buddle (ph), Judge Owens visited two of the facilities one at the choice of the defendant and one at the choice of the plaintiff and they state in there decision that during those days that they were visiting the facilities if they talk with state employees and talk with patients and during that process talked about the admissions, procedures, about the treatment in there all of this issues, but I do not think there is any thing in the record to indicated that they actually sit in on the interview themselves.

Warren E. Burger:

Did either of the of the parties have an opportunity to cross examine the Judges about their observation was there any adversary process pretending the Judge’s view?

John L. Cromartie, Jr.:

Other than the exchanges that occurred during the hearings, there were several hearings that took place, but there was no right to cross examine the Judge.

I know of no such right.

Thurgood Marshall:

What would your idea be of be of an adequate hearing?

Starting out you need a Judge.

John L. Cromartie, Jr.:

Yeah, we do not feel that the Court needs to reach that issue, but if the Court decides to reach the issue we think that at least some sort of deliberations some impartial hearing examiner whether they be Judge or whether they be other professional might well suffice we focus in on —

Thurgood Marshall:

A State psychiatrist?

John L. Cromartie, Jr.:

It perhaps could even be State psychiatrist, we —

Thurgood Marshall:

Well do you not have that at times?

John L. Cromartie, Jr.:

Your Honor, you have State psychiatrist in the same institution and Dr. Messinger (ph) testified very clearly that there institutional biases that work there —

Thurgood Marshall:

Well is it the bias that they want more people?

John L. Cromartie, Jr.:

Your Honor, the testimony was from Dr. Messinger was that frequently psychiatrist in an institution tend to over institutionalize they tend to —

Thurgood Marshall:

Did he also testified that it is hardly possible to get two psychiatrist degree on anything —

John L. Cromartie, Jr.:

Well that is the part of the unreliability of the whole process the danger I would much prefer that the hearing be held in front of a Judge or at least some other substitute such as that —

Now all of these defects and doubts that you are not talking about are equally applicable I suppose, when the question is whether an adult should be received in one of these hospital, is it not?

John L. Cromartie, Jr.:

Yes Your Honor.

I mean the same uncertainty about science of psychiatry and the same biases pro-institutional biases on the part of psychiatrist and so on and there is no claim that an adult presents himself after having consulted with a doctor, that anything is required beyond what is presently accorded, is it?

John L. Cromartie, Jr.:

You are speaking with the voluntary admission —

Yes I am speaking of voluntary admission.

So this case really boils down, parses down, does it not, to the claim that the understanding of the law that has existed for centuries that a parent makes decision for his minor child is invalid.

John L. Cromartie, Jr.:

Yeah we do not feel that parents have been able to institutionalize their children in State mental institutions for centuries, not until —

Well, has not that been the presumption of the law forever.

The Anglo-Saxon law that now there is matter of definition, what is a child?

I suppose that law has never said that person 35-years-old is still a child, but subject — setting aside those problems of definition, has not the law always been that a parent makes decisions for his or her minor child where that child is going to be educated, how that child is going to be punished, where that child –when and if the child is going to go the hospital, what time the child is going to bed, what time he is going to get, up, what time he is going to have breakfast, lunch and dinner.

The implicit recognition of the law in our society.

John L. Cromartie, Jr.:

The explicit recognition of I would think —

Or both.

John L. Cromartie, Jr.:

The traditional way that we protect children is through the parents and we are asking the Court here under these very narrow circumstances that is institutionalization in a mental hospital that the traditional way we protect children is not valid here and we think that the evidence in this case clearly leads to that sort of conclusion if I may review some of the —

The jest is that your attack is on that basic presumption in this context is it not?

John L. Cromartie, Jr.:

I think it has —

Because there is no attack at all on the procedures, and so far as they are applicable to adults.

John L. Cromartie, Jr.:

No Your Honor, there is not there, of course the difference between those two I think is, that in the case of an adult of course it is truly voluntary, I mean —

Well this is voluntary, if you presume that a parent can stake for its child.

This is purely voluntary —

John L. Cromartie, Jr.:

Yes Your Honor, part of our argument is that the traditional protections though for the child are not here under these instances and let me review for you.

The basis —

Before you get to that review tell me if you would or if you prefer to do it after the review, how you distinguish the hospitalization in a mental facility from hospitalization for the tonsillectomy or for appendectomy and that sort of thing?

John L. Cromartie, Jr.:

There are number of reasons that it is different.

One the stigma of institutionalization in a mental institution far transcends any stigma that might be attached to the regular hospital and secondly the very essence of treatment in a mental institution is confinement.

That is the purpose of putting somebody in a maximum security mental hospital is to confine them to deprive them of their liberty.

Well certainly while you are recovering from a serious operation you are confined in a hospital in the same way you are confined in a mental institution.

John L. Cromartie, Jr.:

That is incidental to the treatment and historically we have treated the two very differently.

Warren E. Burger:

What is into confinement in a mental hospital incidental to and the very function of the treatment?

John L. Cromartie, Jr.:

I think not.

I think that the reason that you would be in a State mental institution rather than some alternative facility, less restrictive facility would be for the confinement itself and there is testimony from Dr. Hodges (ph) and others that, that is what you are talking about in the mental facility itself and I am not talking about the community facilities or that sort of thing.

But historically the law has treated the two differently in Sam Brako (ph) in his book for the American Bar Association has pointed out that historically our law has required very strict requirements in terms of placing people in State mental institution.

Well these are voluntary — is this true for voluntary, so called voluntary commitment because that is what we are dealing with here.

John L. Cromartie, Jr.:

Voluntary commitment is a relatively new —

As the law set up all sorts of processes and conditional voluntary commitment?

John L. Cromartie, Jr.:

Not for adults.

No so the basis, your attack is on the basic proposition and that is been accepted and that a parent makes decisions for each child.

John L. Cromartie, Jr.:

Yes Your Honor.

Thurgood Marshall:

You say that the parent cannot make the decision here?

John L. Cromartie, Jr.:

Yes Your Honor.

Thurgood Marshall:

Well who can?

John L. Cromartie, Jr.:

We think the hearing examiner or whoever the State decides should make the decision, right now under the way —

Thurgood Marshall:

The State has decided.

John L. Cromartie, Jr.:

There are different ways like we have got —

Thurgood Marshall:

You are not satisfied with the person the State has picked.

The State has already picked somebody.

John L. Cromartie, Jr.:

We do not think that it is adequate, I mean our two main plaintiffs are perfect examples of why it is not adequate too.

Both of them were recommended by their primary therapist not to go in an institution and yet this process provided them with absolutely no protections and if I might get to —

Thurgood Marshall:

They did have protection, they could have got no lawyer?

John L. Cromartie, Jr.:

If he finally did after five years in a mental institution.

Thurgood Marshall:

I did not want to put that extra icing on it, but he did get a lawyer.

John L. Cromartie, Jr.:

Well fundamentally we do not think that a young child six or seven years old could be expected isolated —

Thurgood Marshall:

Well whom should speak for that child who is six and seven years old?

John L. Cromartie, Jr.:

Well if they were hearing there can be a lawyer appointed, there can be guardian ad litem appointed.

There would be somebody.

Thurgood Marshall:

But how would that be brought about?

John L. Cromartie, Jr.:

Through a process of automatically giving hearing as they —

Thurgood Marshall:

So the State appoints somebody to be the guardian, you could not go buying that could you?

John L. Cromartie, Jr.:

No Your Honor, unless —

Thurgood Marshall:

Well the State here said that this could maybe at the institution who shall determine it?

John L. Cromartie, Jr.:

Yes Your Honor.

Thurgood Marshall:

And now you tell me that, that is wrong and I wonder why?

Why is it not that group as expert as the parent?

John L. Cromartie, Jr.:

Well they found —

Thurgood Marshall:

On the question of insanity and mental illness?

John L. Cromartie, Jr.:

The Court found that the process in itself was inadequate because of the institutional biases, because of the tentativeness of judgment.

Those reasons the Court found that it was inadequate.

Thurgood Marshall:

Are going to tell to turn him loose.

John L. Cromartie, Jr.:

That is not the only alternative here.

There are other alternatives.

The question is whether they are in need of treatment and a maximum security mental hospital.

John L. Cromartie, Jr.:

No question there are other places that the children can be placed, there are other alternatives.

Warren E. Burger:

But your whole argument from the outset makes parents as such a suspect class by saying your Statement that there is an inherent conflict between the interests of the child and the interest of the parent and that, that must be flushed out in some proceeding.

John L. Cromartie, Jr.:

Yes Your Honor.

If I might address that for a minute.

Our evidence in this case shows that all of these situations involve stressful home situations, emotionally charged home situations.

That was the testimony of all of the experts, parents cannot under those circumstances be expected to be totally objective about the process.

Secondly every expert in this case including all of the superintendents of the hospitals testified that the pathology of the child is inextricably related to the pathology of the parents.

That is the parents themselves are a part of the problem that is going on here in the vast majority of cases.

When the State — the colleague here, your friend on the other side does not contended that the State can just take the parent’s word and put the child in the hospital?

John L. Cromartie, Jr.:

There is that further step Your Honor.

Well there is always going to be a medical advice.

I think your problem is to convince the medical advisor, the procedures of the hospital are not adequate because none of those people take the word of the parent.

They say do you want your child treated, we will treat him.

John L. Cromartie, Jr.:

Your Honor we feel that the record is replete with instances of where that stage is inadequate for instance, a psychiatrist does not necessarily even see the child before the child is placed in the institution.

Dr. Gates (ph) testified that sometimes no psychiatrist even sees the child until later.

Until the decision is already made to commit the child.

They rely so heavily on this elaborate community screening to provide them with adequate information, they themselves admit that the procedure at the hospital itself is very, very informal and I think subject to error.

What they claim though to substitute for that is this elaborate community screening process outside the hospital and yet Dr. Filly who is head of the thing testified that, that component is lagging way, way behind.

It does not always — it is not always followed, in fact frequently it is not followed.

Warren E. Burger:

But what you really said here is that the parents are suspect, the institutional psychiatrists are suspect.

Would it satisfy your notions of due process if the Court had designated in each community a panel of 10 psychiatrist or as many as were available and that the institutional psychiatrist plus one of the outside psychiatrist picked at random would make the decision.

Would that take care of due process?

John L. Cromartie, Jr.:

Because that issue is not —

Warren E. Burger:

Counsel you did not respond to that after you had a chance to think about it during lunch hour.

Mr. Cromartie you may resume.

I think we have a question pending —

John L. Cromartie, Jr.:

Yes Your Honor.

May it please the Court.

Prior to the break the Chief Justice had asked me the question as to whether it would be different if there were a panel of 12 psychiatrist and one of those 12 participated in the decision making process, would that satisfy our need for hearing if I understood the question correctly.

It is only 10.

John L. Cromartie, Jr.:

Only 10.

I do not think that the two would be material anyway.

My response to that would be no.

Not as long as the process was set up the same as it is right now.

Our basic position is, is that the process right now does not protect the child’s interest in terms of sifting the facts, sifting through the facts.

There is no opportunity for the child to cross examine what has allegedly been his conduct.

There are no State wide standards or procedures where the child knows what the rules of the game are.

Warren E. Burger:

You are assuming of course two things there.

The child is concerned with what you call the rules of the game and second that, rules the sense an — that implies an adversary type proceeding.

Maybe the worst thing in the world for a child in these circumstances.

John L. Cromartie, Jr.:

Yes, Your Honor, of course.

We do not feel that the Court has to reach the issue of the rules because all the Court’s advice, your procedure has no protections in it whatsoever and look to other State laws, that do provide some protection to children and do involve commitment of children to mental institutions and said use those in the interim.

If the legislature wants to come in and set up other provisions, then they are free to do that under the Court’s decision.

But, the Court’s pointed to the Juvenile Court code which does allow the child to have a hearing and yet takes care of the very trauma issues that you raise.

That is it has provisions in there to help deal within the alleged trauma that might take place.

There is a provision there for excusing the child from the hearing at certain process, certain times.

There is provision for appointment of a guardian ad litem to make sure the child’s interests are adequately protected.

The Court did not specify what additional protections would be needed.

It simply said, the Georgia procedure as it presently exist is not enough.

There needs to be —

Well it certainly implied that the Juvenile Court procedures were adequate, did it not?

John L. Cromartie, Jr.:

Well, that they were available and that they did provide some type of hearing.

Yes, Your Honor and in fact, one-third of the children in Georgia that are committed–

Are committed through those procedures.

Then there is another procedure, the Ordinary Court —

John L. Cromartie, Jr.:

Yes, Your Honor.

That is how adults are normally institutionalized.

What is that called?

The ordinary Court.

John L. Cromartie, Jr.:

The Court of Ordinary.

The Court of Ordinary?

John L. Cromartie, Jr.:

Yes, Your Honor.

What is that like, a Probate Court or.

John L. Cromartie, Jr.:

It is a Probate Court, yes Your Honor and children could be committed through that, in fact they are —

Your objection to a panel of psychiatrist ten or twelve I suppose would be that they are not — that they have this pro-institutional bias and these, that they would not be neutral hearing officers, is that it?

John L. Cromartie, Jr.:

Well, if they were non-institutional psychiatrist.

You said outside.

Outside psychiatrist —

John L. Cromartie, Jr.:

I think that it might well comport with due process as long as there were some procedures, some opportunity for the child and child representatives —

I thought your point was that there ought to be a procedure for cross-examining this by the experts and psychiatrists.

John L. Cromartie, Jr.:

Cross-examining whatever data is brought before those psychiatrists.

Right now, the child is institutionalized because of data that comes from the community.

That says the child did such and so his demeanor has been in such and such in school and there is no chance for the child to confront that and to say, no, that is not the way it was.

You mean a four-year-old child?

John L. Cromartie, Jr.:

Or a representative for that child.

I feel —

Thurgood Marshall:

How did you represent to say what the child did or did not do.

John L. Cromartie, Jr.:

The representative can investigate and cross-examine the people and see whether that is — it is done every day.

And we feel strongly in terms of the age of the children.

That a four or a five or a six year old, that there has to be protection there too, it is dramatically illustrated by the two children that are named plaintiffs.

Thurgood Marshall:

But if the two children that are named plaintiffs are wrongfully there, they are two other ways, you could have gotten them out.

In Georgia.

John L. Cromartie, Jr.:

Yes, Your Honor.

Thurgood Marshall:

(Inaudible)

John L. Cromartie, Jr.:

Habeas corpus with —

Thurgood Marshall:

But, did you not do it.

John L. Cromartie, Jr.:

No, Your Honor.

We did not.

We feel that preventing inappropriate hospitalization would not be accomplished by a case by case habeas approach.

The children are not going to know about those remedies.

John L. Cromartie, Jr.:

They are not going to have the where do I to use those remedies.

A lot of the balancing that I am talking about right here, under the Mathews Eldridge test requires that you look at all elements.

And I really have not talked, about the magnitude of the child’s interest.

But, we are talking about here two children, that were hospitalized for five-and-a-half years in a institution and now their own psychiatrist is saying they do not even need to be there.

Their outpatient therapist said they did not need to be there in the first place.

That is a rather enormous interest that we are talking about right here.

But, maybe and I say maybe, that is all I do not need to be there, conceivably that might be the best place for them among the various options, now available in Georgia, including their own families or some other hospital or some other institution or possibly a Foster family, but it maybe be impossible to find Foster family.

John L. Cromartie, Jr.:

It is ironic to me, that I was furnished a list this morning.

There were forty six kids that the State has consistently said there is nothing we can do with these children.

There are no alternatives for them and yet all, but two of them are out of the institution now and they have not built any new facilities.

There are other alternatives available and I think that this due process hearing that we are talking about, whatever the particular form might be would center in on that one thing it would be well worth the effort.

That is in the community, to look at what other alternatives are available and to look at that in the community and to see if there are other alternatives.

How does Georgia define a child, at what age.

What age are we talking about.

After what age?

John L. Cromartie, Jr.:

Well, we are talking about through age 17.

Through’s age 17, is that the statutory definition in Georgia.

Up to the 18th Birthday?

John L. Cromartie, Jr.:

Yes, Your Honor.

And from then on, over 18 it is an adult for this purpose under Georgia law.

John L. Cromartie, Jr.:

Yes, Your Honor.

Warren E. Burger:

What you are postulating here is some sort of a at least quasi adversary proceeding and — which is hear your argument would be a four sided sort of procedure.

The parents, the child, the experts, the doctors, the medical experts, clinical psychologists and the guardian ad litem and you suggested putting a a child through that four sided kind of adversary procedure.

It is not going to have an irreversible traumatic affect on the child.

John L. Cromartie, Jr.:

I cannot imagine any more trauma on a child and what J.L. and J.R. had gone through for the past five years to be dumped and literally dumped into —

That is an overstatement, is it not?

John L. Cromartie, Jr.:

Yeah the testimony of Dr. Messinger is that he had never seen a more classic, more clear cut example of parents dumping a child then the case of J.L. But, getting to your question, there is an amicus curie brief before the Court right now.

In New Jersey Supreme Court has mandated just such a procedure there and their experience has been that in fact these hearings have been therapeutic in terms of the patch in our relationship.

It is no mystery to children that there are conflicts within the family.

Children’s judgment may not be totally intact, but children’s – I know from having several of them, that children’s perceptions are very good.

John L. Cromartie, Jr.:

Even a five-year-old has very good perception.

They can pick up conflict, they know there is conflict with their parents, they know there is conflict there.

The hearing can actually be traumatic, it can be therapeutic if done, say the way we do it in a Juvenile Court right now.

Now, I cannot say how Juvenile Courts work around the country, but I know in Georgia, our Juvenile Court works and it worked well.

I think we have kept the best of both and I have had a lot of practice in Juvenile Court.

We have managed to keep it informal enough to where nobody is traumatized by the process and yet it is formal enough to adequately protect the rights of the people.

Your Honor, I think it can be done.

May I ask you, whether you expect to reach what has been called a substantive due process issue.

John L. Cromartie, Jr.:

I will manage, Your Honor.

You do not have that much time left.

John L. Cromartie, Jr.:

I will now.

We do not feel that the State has categorized the issue correctly.

At page 135 of the Court’s opinion, it made very clear that what it was finding here, was that by the State’s own admission that there were 46 children who did not need to be in hospital and secondly that they were being harmed by a continued stay in that hospital.

And what the Court did, it took the Jackson versus Indiana test and said that if you are going to hold children there is going to be some relationship between the holding and what you are trying to do for them.

I think that the Court’s holding is very, very limited, much more limited, then what the State would categorize it as.

It is a very limited holding.

William H. Rehnquist:

You do not read the decree then as the italicized portion of page 54-A, as requiring the State to spend money if necessary to build these facilities as something that must be complied but even though the State would prefer to simply turn the children loose from any confinement.

John L. Cromartie, Jr.:

It was a ruling that applied to 46 names specific —

With respect to them, how do you construe the ruling?

John L. Cromartie, Jr.:

That they were to do what was necessary to relieve the unconstitutional condition that existed.

Could they relieve it by simply releasing them from custody?

John L. Cromartie, Jr.:

I think they probably could.

Is that the way you read the decree?

John L. Cromartie, Jr.:

That is the way the State has.

Is it the way you read it?

John L. Cromartie, Jr.:

Yes, Your Honor.

Warren E. Burger:

What is the source of the Court’s power to order the State of Georgia to spend money for this project.

John L. Cromartie, Jr.:

Well, I think the Court was convinced in its own mind that the State of Georgia did not have to spend anything.

That it would actually be cheaper to have these children and less expensive resources.

Warren E. Burger:

But, they did command them to spend money.

Warren E. Burger:

Did they not?

John L. Cromartie, Jr.:

No, Your Honor.

They said if that was what was necessary, to spend the money.

The Court had told them several times, we do not think that you have to spend any money.

We think its cheaper to have these children in less restrictive, less confining environments.

John Paul Stevens:

And Mr. Comartie I might just ask one question about what is going to happen next after the case leaves this Court.

One of the briefs filed by one of the associations suggest Tthat there should be an exemption for intact families pre-adolescent children and for commitments for short periods of time, at least when all those conditions are met.

Could that be done consistently with the manner which the case was disposed or belowered does that require.

How much flexibility is there and what goes on next I guess what I am really asking.

John L. Cromartie, Jr.:

There is a good bit of flexibility in what the Court did because it really did not say this is what is required, X, Y and Z, because the EPA brief agreed that the Georgia procedures were invalid, what they said was, with an intact family for a short period of time for accredited institution for a pre-adolescent child, the balancing maybe different there.

And clearly, the District Court —

But, under the holding of the District Court, is the procedure invalid even as applied to that narrow category.

I suppose it is.

John L. Cromartie, Jr.:

Yes, Your Honor, it is.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.