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May 25, 1978

INSTITUTIONALIZED JUVENILES in Pennsylvania institutions for the mentally ill and the mentally retarded et al.
SECRETARY OF PUBLIC WELFARE, Commonwealth of Pennsylvania, et al.

The opinion of the court was delivered by: HUYETT


I. Introduction

 In 1975, this Court, convened as a three-judge federal court pursuant to 28 U.S.C. § 2281 *fn1" held that certain provisions of the Pennsylvania Mental Health and Mental Retardation Act of 1966 (1966 Act) providing for voluntary commitment and admission to mental health facilities were unconstitutional. *fn2" Bartley v. Kremens, 402 F. Supp. 1039 (E.D.Pa.1975), Vacated and remanded 431 U.S. 119, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977). We concluded that these provisions failed to provide juveniles committed to mental health facilities with specific procedural rights guaranteed by the Fourteenth Amendment to the Constitution which could not be waived by parents, guardians, or persons standing In loco parentis.

  The Supreme Court vacated and remanded this case for further consideration in view of the passage by the Pennsylvania Legislature of the Mental Health Procedures Act of 1976 (1976 Act). 50 P.S. §§ 7101-7503 (Supp.1977-78). The passage of the 1976 Act mooted the claims of the named plaintiffs *fn3" and, in addition, created distinctions, at least with respect to the governing statutory enactments, between mentally retarded and mentally ill juveniles. It was the Supreme Court's opinion that, in view of these new statutory distinctions, the class action originally approved no longer met the requirements of Fed.R.Civ.P. 23(a). The Supreme Court therefore remanded "for reconsideration of the class definition, exclusion of those whose claims are moot, and substitution of class representatives with live claims." 431 U.S. at 135, 97 S. Ct. at 1718.

 II. Statutory Scheme

 We first consider the contours of the statutory scheme governing voluntary admissions and commitments of juveniles. A description of the statutory scheme is important in order to structure properly the subclasses to be maintained pursuant to Rule 23. Furthermore, a full understanding of the statutes is necessary to our determination of whether they satisfy the requirements of procedural due process.

 A. The Mental Health Procedures Act of 1976 (1976 Act)

 The 1976 Act repeals the provisions of the 1966 Act except as they relate to mentally retarded persons. Article II of the 1976 Act articulates the procedures for voluntary inpatient treatment of mentally ill persons. "Inpatient treatment" includes all treatment that mandates full or part-time residence in a mental health facility. *fn4" Section 201 provides that "a parent, guardian, or person standing in loco parentis to a child less than 14 years of age" may apply for voluntary examination and treatment, and by so doing shall be deemed to act on behalf of the child. *fn5" Once a juvenile is accepted for voluntary examination and treatment, the 1976 Act requires that "an individualized treatment plan (be) formulated by a treatment team" within seventy-two hours. *fn6" The treatment plan must state whether inpatient treatment is necessary and, if so, the reasons for that conclusion.

 Section 206 of the 1976 Act sets forth the procedures for withdrawal from voluntary inpatient treatment. *fn7" Where the person committed is under the age of fourteen, his parent, legal guardian or person standing In loco parentis may obtain his release. In addition, "any responsible party" who believes that it would be in the best interests of the juvenile to be withdrawn from inpatient treatment may petition the Juvenile Division of the court of common pleas of the county in which the juvenile resides and request withdrawal or modification of treatment. Then the court must appoint counsel for the child and schedule a hearing within ten days to determine "what inpatient treatment, if any, is in the minor's best interest." 50 P.S. § 7206(b).

 B. Mental Health and Mental Retardation Act of 1966 (1966 Act)

 The 1966 Act was the focus of the original Bartley decision in which this Court declared sections 402 and 403 of that Act to be unconstitutional. *fn8" Following the passage of the 1976 Act, only mentally retarded juveniles remain within the ambit of the 1966 Act. Sections 402 and 403 provide, in brief, that mentally retarded juveniles age eighteen or younger may be admitted or committed *fn9" to a mental health facility upon the application of a parent, guardian, or person standing In loco parentis, and may withdraw only with the consent of the admitting party or his successor.

 C. 1973 Regulations

 The 1973 Regulations, *fn10" promulgated by the Secretary of Public Welfare under the provisions of the 1966 Act, augment the procedural rights given to mentally retarded juveniles by the 1966 Act. *fn11" Portions of the regulations apply to all juveniles aged eighteen and younger, such as the requirement that juveniles admitted to a mental health institution be referred by a mental health professional, pediatrician, general physician, or psychologist; that this referral include a psychiatric, medical or psychological evaluation stating specifically the reasons why the juvenile requires institutional care; *fn12" and that the Director of the Institution conduct an independent examination of the juvenile prior to admission.

 Additional rights are available to mentally retarded juveniles thirteen years of age or older. These juveniles receive written notification explaining their rights and furnishing them with the number of counsel whom they may call for representation. If a juvenile age thirteen or older objects to remaining at the institution, a commitment hearing must be held pursuant to the procedures provided for involuntary commitment. *fn13" We note here, as we did in the original Bartley opinion, that the regulations designate no time by which a post-commitment hearing must be held. 402 F. Supp. at n. 5.

 In sum, there are two completely distinct statutory schemes which are under attack in this lawsuit; one relating to the mentally retarded (1966 Act as modified by the 1973 Regulations) and one relating to the mentally ill (1976 Act). Furthermore, with respect to mentally retarded juveniles, older juveniles are given some rights not accorded the younger juveniles.

 III. Named Plaintiffs

 There are twelve named plaintiffs in this lawsuit. Nine are mentally ill juveniles, age thirteen or younger, who were committed to mental health institutions pursuant to the 1976 Act. *fn14" The remaining named plaintiffs are mentally retarded juveniles, age fourteen or older, institutionalized under the 1966 Act and the 1973 Regulations. *fn15"

 Plaintiff Kevin S., age twelve, was admitted to Haverford State Hospital (Haverford) on July 18, 1977, pursuant to section 201 of the 1976 Act. Kevin's medical records reveal that his mother, who is separated from his father, has a history of serious mental illness, including incidents of hospitalization. Consequently, much of Kevin's youth has been spent in foster homes.

 Prior to his commitment to Haverford, Kevin came to the attention of school authorities because of his inappropriate behavior, such as "making weird noises, refusing to do work, and talking back to teachers." A consulting school psychiatrist diagnosed Kevin as a "disturbed child" and recommended placement in Haverford. Kevin's psychological evaluation, performed after his admission to Haverford, describes him as a "very needy, very angry boy" who was "not currently seen as psychotic, although there is a tendency toward projection and a lack of controls where anxious." His Admission Note, also prepared after his admission, gives as the "reason for admission:" "Difficulties adjusting to school and family (mother). Exhibited bizarre behavior in school that has included making inappropriate sounds and laughing inappropriately." Kevin's psychological history concludes, "It is felt that much of Kevin's problems come from living with a schizophrenic mother and having a very unstable and abused early life."

 Richard S., age thirteen, was committed to Haverford by the county child care agency on June 6, 1976 pursuant to section 201 of the 1976 Act. Richard has spent almost all of his life in foster homes and residential homes for difficult children, with the exception of a two-year period between the ages of two and four. His Admission Note for Haverford states, as a reason for admission: "Inability to adjust to an open setting. History of self harm and running away."

 Plaintiff James Paul M., age eight, was admitted to Haverford on October 17, 1977, under section 201 of the 1976 Act. His mother had died approximately one year before his admission to Haverford. The stated "reason for admission" to Haverford was "uncontrollable behavior" and "learning disability."

 Plaintiff Raymond C., age thirteen, was admitted to Haverford on September 28, 1977, pursuant to section 201 of the 1976 Act. Raymond was admitted initially for purposes of "evaluation." The reason given for his admission was "History of uncooperative disruptive and aggressive behavior including run (sic) away from school. Problems in community with stealing and destroying property. Has a learning and hearing problem."

 William B., age nine, was committed to Haverford by his father pursuant to section 201 of the 1976 Act on September 21, 1977. For about two years prior to his commitment, William had been living with his natural father, stepmother, and two stepbrothers. The stated reason for his hospitalization was William's "uncontrollable behavior; preoccupied with matches, set a rug on fire, turned the gas burners on in the house, throws things out the window."

 Twelve year old Edward B. was committed to Haverford on May 9, 1977 pursuant to section 201 of the 1976 Act. He has subsequently been discharged from Haverford. Hospital records show that Edward was not informed that he was to be admitted to a mental health facility prior to his admission date, but rather was told that his parents were taking him to a new school. He was extremely upset by the admission process, expressing fears about being in a hospital with "crazies" and being confined "like a prisoner." The stated reason for his admission was that Edward was "Hyperactive with poor behavioral control; threatens to hurt himself; feels depressed."

 Plaintiff Francis B., age ten, was originally admitted to Haverford pursuant to section 403 of the 1966 Act on August 16, 1976. Subsequently, on September 7, 1976, Francis' father executed a form committing Francis to inpatient treatment pursuant to section 201 of the 1976 Act. While no "reason for admission" is given in the Admission Note, the examining physician stated that Francis had "difficulties adjusting to school" and that he has been described as "hyperactive with short attention span." Francis B. has subsequently been discharged from Haverford.

 Plaintiff Maria L., age twelve, was admitted to Haverford on April 25, 1977, pursuant to section 201 of the 1976 Act. The Admission Note states that she was admitted because of "difficulties adjusting to school because of aggressive behavior . . . (and) difficulties adjusting within the family." Maria has subsequently been discharged from Haverford.

 Plaintiff Thomas W. is eleven years old. He was originally committed to Haverford under section 302 of the 1976 Act (Involuntary Emergency Examination and Treatment), which was subsequently changed to a section 201 commitment. The stated reason for admission was Thomas' violent behavior. Thomas has since been discharged from Haverford.

 The three remaining named plaintiffs are committed to institutions for mentally retarded pursuant to the 1966 Act. Plaintiff Nancy Louise D., age seventeen, was admitted to Polk State School and Hospital (Polk) *fn16" and is being confined pursuant to the terms of the 1966 Act. She was living in a foster home until institutionalized on May 22, 1968. Nancy Louise is categorized as being moderately retarded.

 Plaintiff Gina S., age sixteen, was admitted to Polk on October 20, 1970 by her mother. She is currently being confined under section 402 of the 1966 Act. Gina's medical records state that she is functioning in the moderately retarded range of intelligence.

 Plaintiff George S., age fourteen, was admitted to Pennhurst State School and Hospital (Pennhurst) on November 5, 1969, under the voluntary admission provisions of the 1966 Act in response to a request by Catholic Social Services. Prior to his admission to Pennhurst, he had been living in a foster home until his foster mother became unable to care for him. George is classified as being severely retarded.

 IV. The Class

 The Supreme Court cautioned that "careful attention must be paid to the differences between the mentally ill and mentally retarded, and between the young and the very young." 431 U.S. at 135-36, 97 S. Ct. at 1718. In response, we have painstakingly reviewed the testimony given at trial and considered as well the supplementary evidence submitted to us on remand. *fn17" On the basis of the record before us, we find as follows.

 As the Supreme Court noted, there are major differences between the mentally ill and the mentally retarded. Mental illness is a term which covers a plethora of problems ranging from severe withdrawal and psychosis, to emotional problems which are situationally based. *fn18" Mentally retarded persons, on the other hand, are defined as those with substantial intellectual subnormalities, coupled with impairments in adaptive behavior originating in the developmental period. *fn19" Approximately three percent of the population, or two to three million persons, are classified as mentally retarded. Eighty to eighty-five percent of those are only mildly retarded; however, even those who suffer from a minor impairment are at times institutionalized. *fn20" Despite these differences between mental illness and mental retardation, the testimony reveals that, with respect to many of the crucial factors which this court must consider in determining procedural due process requirements, there is little difference between the two groups.

 First of all, a similar kind of stigma attaches to institutional commitment whether the juvenile is classified as mentally ill or mentally retarded. Experts on mental illness and retardation testified that this stigma is imposed both outwardly, in that juveniles who have been in institutions encounter substantial obstacles in the community, *fn21" and inwardly, in that the self-image of the juvenile is almost always severely damaged. *fn22" Mentally retarded children who are institutionalized are often stigmatized as dangerous and aberrant, thus making their subsequent integration into the community even more difficult. Further, these children are deprived of non-handicapped role models and, as a consequence, tend to adopt behavior patterns which are not socially and culturally appropriate. These behavior patterns may continue after a child is released into the community and, in fact, serve to accentuate the existing community stereotype of the mentally retarded. *fn23"

 Second, both mental illness and mental retardation are conditions which are subject to error in diagnosis and identification. Experts on mental illness in juveniles repeatedly emphasized that the problems of the juvenile are often closely intertwined with mental and emotional problems of other family members. Irrespective of this fact, the juvenile is often the person isolated as having the mental problems. *fn24"

 Errors in identifying mentally retarded juveniles result from different factors. First of all, certain physical characteristics, E. g., Down's Syndrome, have historically been associated with retardation. However, these associations may not necessarily be accurate. Second, certain physical handicaps may cause a person to be mistakenly labelled mentally retarded. An undetected hearing impairment, for example, may prevent a child from performing well on an I.Q. test. A child who lacks normal motor or speech capabilities, who is unable to communicate or behave like other children, may be mistakenly identified as being retarded. *fn25"

 Third, conflicts between the concerns and interests of the parents, and the best interests of the child frequently arise with respect to both mentally ill and mentally retarded children. Experts on mental illness testified that parents often commit their mentally ill children because of pressures in the home related to the child, or because of the parents' inability to cope with the child's problems and lack of awareness of alternatives to institutionalization. *fn26" Similarly, parents of mentally retarded children are frequently subject to community pressure to institutionalize their children. *fn27" Other personal pressures, such as the parents' own emotional difficulties in dealing with the mentally retarded child, as well as the financial problems of providing necessary care, may cause a parent to institutionalize a mentally retarded child although that course is not in the child's best interests. 28 Finally, the parents simply may not be aware of less drastic alternatives to institutionalization. *fn29" Because of these potential conflicts between the parent and child, experts who testified on behalf of both mentally ill and mentally retarded children were of the opinion that an impartial third party *fn30" should make the final decision to institutionalize a child, not only for the child's benefit, but also to reduce the trauma and guilt felt by the parents. *fn31"

 Finally, testimony concerning the nature of the deprivation of liberty inherent in institutionalization and the impact of this deprivation upon the individual is similar for both mentally ill and mentally retarded children. *fn32" One expert testified to the "derailment from the usual course of one's life, the dreary regimen even in the most progressive hospitals, the extreme deprivation and limits" which are the effects of institutionalization. *fn33" Institutions prevent persons from being exposed to normal community experiences and prevent individual growth. With respect to mentally retarded persons, these conditions may be rendered even more acute by the person's inability to protect himself against the dehumanizing effects of institutionalization. *fn34" Finally, these effects appear to be the same regardless of whether the institution is state-operated or privately-operated; the crucial variable is size. *fn35"

 The ages of the mentally retarded juveniles covered by the 1966 Act range from adolescent to very young. However, we conclude that the same factors hold true irrespective of the child's age. Indeed, the danger of misclassification and the stigma of institutionalization fall more heavily upon the younger child, for whom the decision to institutionalize may effectively foreclose any opportunity to adjust adequately to life in the community. Conversely, there is no evidence to suggest that older mentally retarded juveniles have either a greater or lesser need for procedural due process protection. On the contrary, as with younger juveniles, an older juvenile who is mentally retarded may be functioning under the same disabilities which are pertinent here; that is, he may be unable to read or write, or to understand concepts such as the right to counsel. *fn36" Therefore we conclude that the need for due process protection and the factors which this Court must consider in determining what process is due, are the same for older and younger mentally retarded juveniles.

 V. Plaintiff Class Action

 Plaintiffs have requested that they be permitted to bring this action on behalf of two classes in accordance with Fed.R.Civ.P. 23(a) and 23(b)(2). *fn37" One proposed class would consist of juveniles committed as mentally ill and who are under age fourteen; the other class would be juveniles committed as mentally retarded who are age eighteen or younger. Mindful of the Supreme Court's instructions that we " "stop, look, and listen' before certifying a class in order to adjudicate constitutional claims," we proceed to determine if these proposed classes may be properly maintained.

 A. Mentally Ill Juveniles Under Age Fourteen

 One proposed class consists of all juveniles under the age of fourteen who are subject to inpatient treatment under Article II of the 1976 Act. We conclude that the class meets the requirements of Rule 23.

 This class consists of approximately 360 members *fn38" which is sufficient to meet the numerosity requirements of Rule 23(a).

 The question of law common to all class members is the facial validity of those provisions of Article II of the 1976 Act which relate to the voluntary commitment of mentally ill juveniles under the age of fourteen.

 Rule 23(a) requires that the claims of the representative parties be "typical" and that those parties adequately represent the interests of absent class members. While it has been noted that there is difficulty in distinguishing between the "typicality" and "adequacy" requirements, those two criteria may be taken in concert as requiring that (1) the named plaintiffs be members of the class; (2) the named plaintiffs have no interests antagonistic to those of absent class members; and (3) the named plaintiffs' attorney be qualified, experienced and generally able to conduct the proposed litigation. *fn39" See Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239 (3d Cir. 1975); Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968); 3B J. Moore, Federal Practice P 23.07(1) (2d ed. 1977).

 Nine of the named plaintiffs are juveniles committed as mentally ill who are under the age of fourteen; thus, they clearly are members of the class. There is no conflict between these plaintiffs and absent class members. Each class member, irrespective of that child's age, is confined under the same statutory provisions alleged to be unconstitutional. Therefore we conclude that the class itself is cohesive and free from conflict, and that the representative plaintiffs, through counsel, will adequately and vigorously represent the interests of absent class members. *fn40"

  Finally, the class meets the requirements of Rule 23(b)(2), since "the party opposing the class has acted or refused to act on grounds generally applicable to the class," thereby making declaratory or injunctive relief with respect to the entire class appropriate. See Goldy v. Beal, 429 F. Supp. 640 (M.D.Pa.1976) (three-judge court). We find, therefore, that this action may be maintained as a class action on behalf of all juveniles committed as mentally ill who are under the age of fourteen.

 B. Mentally Retarded Juveniles Age Eighteen Or Younger

 Plaintiffs also seek to maintain this action on behalf of a class of mentally retarded juveniles age eighteen or younger. This entire class is covered by the 1966 Act; however, as noted above, juveniles age thirteen and over are given additional protection by the 1973 Regulations. The Supreme Court expressly posed the question of whether differences between older and younger juveniles might render certification of a class embracing both groups improper. 431 U.S. at 135, 97 S. Ct. 1709. Because of our finding that there are no significant differences between older and younger mentally retarded juveniles for due process purposes, and for other reasons stated below, we conclude that the applicable Rule 23 criteria are met.

 This class consists of approximately 3,153 members, *fn41" which is clearly sufficient to meet Rule 23(a)"s numerosity requirement. Of greater concern is the requirement that there be questions of fact and law common to all class members, since mentally retarded juveniles who are thirteen and over are given greater procedural protection pursuant to the 1973 Regulations than younger juveniles. However, the attack mounted here is against the entire statutory scheme, including both the applicable provisions of the 1966 Act and the 1973 Regulations. We have previously made a finding that, for procedural due process purposes, there are no significant differences between older and younger mentally retarded juveniles. Therefore, if the statutory scheme is unconstitutional with respect to the older juveniles who receive greater protections, then it is A fortiori unconstitutional with respect to the younger juveniles who receive far less protection.

 The "typicality" and "adequacy of representation" requirements are also met. The named plaintiffs here are all age thirteen or older and are thus given greater protections under the 1973 Regulations than class members under age thirteen. However, all three mentally retarded plaintiffs were admitted to their respective institutions before they reached age thirteen and, therefore, were presumably not accorded the additional procedural safeguards at the date of their admission. Furthermore, we do not believe that the rights accorded to older juveniles following their admission, such as the right to request a hearing on the validity of their confinement, serve to create a conflict between the older and younger juveniles. *fn42" First of all, we reiterate our conclusion that due process requirements are the same for both groups. Second, we note that, in order for the named plaintiffs to prevail on their claim that the statutory scheme is unconstitutional, it will be necessary for them to prove the unconstitutionality of the statute and regulations as applied to the less protected younger retarded juveniles. *fn43" Therefore, we conclude that this action is properly brought on behalf of a class of mentally retarded juveniles age eighteen or younger.

 VI. Discussion

 In our original decision, we concluded that the plaintiffs had a liberty interest, protectible under the Fourteenth Amendment, in not being institutionalized without due process of law. 402 F. Supp. at 1046. Encompassed within this liberty interest is not only protection against physical restraint and confinement, but also protection of the juvenile's "good name, reputation, honor, (and) integrity." Wisconsin v. Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971), Cited in Bartley v. Kremens, supra, 1046 n. 8. The protection of the plaintiffs' reputation interest is implicated because of the stigma attached to institutional commitment, a stigma which "may render civil commitment a more lasting abridgement of personal freedom than imprisonment for a crime." Id. at 1046. We reaffirm these conclusions.

 We further determined that this liberty interest could not be waived by plaintiffs' parents, guardians, or persons standing In loco parentis. Id. at 1047. There may be instances where the congruence between the parents' interests and those of the child assure that the parents will arrive at a decision based upon the best interests of the child. *fn44" The evidence in this case overwhelmingly demonstrates that, due to the substantial potential for conflict between the interests of the parent and the child, this is not such a situation. See New York State Association for Retarded Children v. Rockefeller, 357 F. Supp. 752, 762 (E.D.N.Y.1973); Cf. Horacek v. Exon, 357 F. Supp. 71, 74 (D.Neb.1973).

 It has been argued that the parents' determination that institutionalization is the appropriate treatment for a child believed to be mentally ill or retarded is no different from the decision to provide any other type of medical treatment. We disagree. Unlike other kinds of medical treatment, a substantial stigma attaches to institutionalization. This stigma coupled with the substantial danger of error in the diagnosis of mental illness and mental retardation, and the greater potential for long-term loss of liberty *fn45" create a situation substantially different from the treatment of other medical conditions. Furthermore, we perceive little or no parent-child conflict in the decision to give or withhold other kinds of medical treatment since a parents' interests are more likely to be similar to the best interests of the child. Therefore, we reaffirm our holding that parents may not waive the constitutional right of their child not to be deprived of liberty without due process of law.

 We then turned to a consideration of what process was due. In responding to plaintiffs' allegation that they were deprived of certain specific procedural rights, we concluded that the juvenile plaintiffs were entitled to


(1) a probable cause hearing within seventy-two (72) hours from the date of their initial detention; (2) a post-commitment hearing within two (2) weeks from the date of their initial detention; (3) written notice, *fn46" including the date, time, and place of the hearing, and a statement of the grounds for the proposed commitment; (4) counsel at all significant stages of the commitment process and if indigent the right to appoint free counsel; *fn47" (5) be present at all hearings concerning their proposed commitment; (6) a finding by clear and convincing proof that they are in need of institutionalization; (7) the rights to confront and cross-examine witnesses against them, to offer evidence in their own behalf, and to offer testimony of witnesses. *fn48"


402 F. Supp. at 1053. While we set forth these detailed procedures, we also stated, "Our action is not intended to preempt the state which is free to develop its own safeguards so long as they are as fully effective as those which we set out." Id. at n. 16, Citing Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) and Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1971). To rephrase Judge Friendly, there is no single correct solution to the problem of safeguarding the interests of the juvenile plaintiffs; "more of one procedural safeguard may justify less of another." Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1302 (1975).


We reaffirm these conclusions, and make the following additions and clarifications. First, we reiterate the need for a hearing in all cases unless there is a valid waiver. The Supreme Court has dictated that, in identifying the specific content of due process, three factors must be considered: the private interest involved, the risk of erroneous deprivation, and the Government's interest, including any fiscal and administrative burdens that the additional procedures would entail. Smith v. O. F. F. E. R., 431 U.S. 816, 97 S. Ct. 2094, 53 L. Ed. 2d 14 (1977); Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The juvenile's interest here is weighty, and the risk of erroneous deprivation, as noted earlier, is great. *fn49" We believe that a hearing would insure that the interests of the child are clearly represented, that alternatives to institutionalization are fully explored, and that the decision to commit the child is impartially made. *fn50" See J. L. v. Parham, 412 F. Supp. 112 (M.D.Ga.1976) (three-judge court); Lynch v. Baxley, 386 F. Supp. 378 (M.D.Ala.1974).


Several issues should be considered at the hearing. First, the unbiased tribunal should determine whether, in fact, the child is mentally ill or mentally retarded. If this determination is affirmative, the tribunal should proceed to determine if commitment is necessary, if it will be beneficial to the child, and if it is the least restrictive alternative. J. L. v. Parham, supra; Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295 (E.D.Pa.1977). Where the state sanctions the restriction of a child's liberty rights, such restriction should intrude upon those rights to the smallest possible degree necessary for the achievement of the purposes of the restriction. Shelton v. Tucker, 364 U.S. 479, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960). See Halderman v. Pennhurst State School and Hospital, supra, and cases cited therein. While the tribunal should make findings to support its determination, these findings need not necessarily be made formally. It is crucial, however, that the tribunal make a good faith, independent determination that the above criteria are met before a juvenile is confined.


We reject the argument that a hearing should not be required because it might prove traumatic for the child. First of all, the expert testimony, for the most part, demonstrated that the effects of a hearing on the child and, in many cases, the parent would be beneficial. *fn51" For example, one expert testified, with respect to mentally retarded children, that a hearing would enhance feelings of dignity and self-worth in the child, reduce the guilt feelings of the parents, and reduce interfamilial conflicts, if any exist, over whether the decision to commit the child is correct. *fn52" Secondly, we note that the attorney representing the child has the option of waiving the child's presence at the hearing if there is a potential for trauma, and the court may accept such waiver where the child's interests are not compromised. Finally, any danger of trauma pales beside the potential severity of the deprivation of liberty suffered by a child needlessly institutionalized. See Dixon v. Attorney General, 325 F. Supp. 966 (M.D.Pa.1971) (three-judge court).


Finally, with respect to the nature of the tribunal, we state only that the tribunal must be neutral and unbiased. It is clear that "an unbiased tribunal is a necessary element in every case where a hearing is required." Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1279 (1975). Whether the tribunal should be judicial or administrative is not a matter best resolved by this Court at this time. *fn53"


In view of the guidelines set forth above, we turn to the specific provisions attacked here; namely, the 1973 Regulations and the 1976 Act.


a. 1973 Regulations


As outlined above, these regulations augment the procedures of the 1966 Act, giving certain procedural rights to all juveniles and other additional rights to juveniles age thirteen and over. Since the passage of the 1976 Act, these provisions apply only to those juveniles who are mentally retarded. We conclude that these 1973 Regulations are not in accord with the requirements of due process.


One of the major deficiencies *fn54" of the 1973 Regulations is the absence of a procedure designed to achieve informed, impartial admissions. Under the Regulations, a juvenile under the age of eighteen may be admitted to an institution upon the referral of either a pediatrician, general physician, or psychologist, *fn55" with the concurrence of the Director of the Institution. *fn56" The referring pediatrician or general physician may have no knowledge or training whatsoever concerning the problems of mental retardation, *fn57" while the Director of the Institution, who has interests different from those of the child, may be placed into a position of conflict in making the decision to commit. *fn58" There is no assurance whatsoever that the interests of the child will be weighed in making this decision. Therefore, this procedure does not provide the protections furnished by hearing before an "unbiased tribunal".


As for the additional procedural rights given to children age thirteen and older, we conclude that there are severe deficiencies in these procedures as well. First of all, the mentally retarded child who receives written notice may not be able to read the notice or comprehend the explanation of his rights contained therein. Assuming that the child does understand the notice, however, the burden of commencing the enumerated procedures rests with the juvenile; he must contact counsel or object to the institutionalization. As one of the experts testified, "It's putting an awful lot of burden on young retarded persons to stand up against a big institution." Deposition of L. Glenn, at 67. Once the child protests, there is no set time limit in which a hearing must be held. We believe that, especially in the case of retarded children, who may lack the ability to understand the notice given to them, due process rights are violated in the absence of an automatic post-commitment hearing, to be scheduled within a reasonable time, and the presence of counsel to speak solely for the child's interests. *fn59" Therefore, we hold that the 1973 Regulations fall short of the minimum due process requirements we outlined above.


b. 1976 Act


Article II of the 1976 Act, as noted above, specifies certain procedures for the voluntary "inpatient treatment" of mentally ill juveniles who are age thirteen or younger. We believe that these procedures do not meet due process standards.


We will note specifically several of the deficiencies of the 1976 Act. The major deficiency is the absence of a required post-commitment hearing to be held within a reasonable time after commitment and the absence of counsel to advocate the interests of the child. *fn60" We believed that these procedural requirements are especially critical where, as here, the rights of very young children may be implicated. These mentally ill children may lack the ability and capacity to speak on their own behalf, as an older juvenile might be able to do, and their interests may be overlooked. *fn61"


The procedures governing withdrawal from inpatient treatment in no way cure the defects of the statute. Section 206(b) provides that "any responsible party" may petition the Juvenile Division of the Court of Common Pleas for the modification of or withdrawal from treatment, and at that time, a hearing will be held. Thus, again, rather than providing for automatic procedures aimed at protecting against an unconstitutional deprivation of liberty, the statutory scheme places the burden upon a "responsible party" to initiate the procedures to which the juvenile is entitled. This type of statutory scheme is unacceptable.


Accordingly, we declare that the procedures for voluntary commitment of mentally ill and mentally retarded juveniles, as set forth in the 1966 Act, the 1973 Regulations, and the 1976 Act, are unconstitutional on their face and as applied to plaintiffs, and enjoin their enforcement. *fn62"


We continue to retain jurisdiction over this action, as we have the inherent power to do. This will enable the parties to apply for amendment or modification of the Order if they deem it necessary. *fn63"

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