Heryford v. Parker, 9724.

• Decision Date: 14 June 1968
• Docket Number: No. 9724.,9724.
• Citation: 396 F.2d 393
• Parties: Fred W. HERYFORD, Superintendent of the Wyoming Training School in Fremont County, Wyoming, Appellant, v. Charles W. PARKER, by and through Mabel A. Parker, his mother and next friend, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

396 F.2d 393 (1968)

Fred W. HERYFORD, Superintendent of the Wyoming Training School in Fremont County, Wyoming, Appellant, v. Charles W. PARKER, by and through Mabel A. Parker, his mother and next friend, Appellee.

No. 9724.

United States Court of Appeals Tenth Circuit.

June 14, 1968.

Lawrence E. Johnson, Cheyenne, Wyo., and Jack Speight, Asst. Atty. Gen., Cheyenne, Wyo. (James E. Barrett, Cheyenne, Wyo., on the brief), for appellant.

Barkley Clark, Denver, Colo., for appellee.

Before MURRAH, Chief Judge, HILL and SETH, Circuit Judges.

MURRAH, Chief Judge.

This case was first before us on denial of a writ of habeas corpus sought by a mother as natural guardian in behalf of her mentally deficient son. The complaint was that the son was committed to the Wyoming State Training School for feeble-minded and epileptic under applicable Wyoming statutes without due process and particularly that he was denied his right to counsel and confrontation. We remanded to determine whether in view of In the Matter of the Application of Gault, etc., 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, the patient had a constitutional right to counsel, and if so, whether his mother as natural guardian could and did waive it. 10 Cir., 379 F.2d 556. On remand the writ was granted and the State of Wyoming brings this appeal. We affirm.

The background and undisputed facts are that in 1946, when Charles Parker was about nine years of age, his mother requested the County Attorney to institute proceedings for commitment of Charles to the Wyoming Training School for feeble-minded and epileptic. The Wyoming Statutory procedure, i. e. see 9-444 thru 9-449, Wyo.Stat., provides that commitment of the feeble-minded and epileptic may be initiated by application of a relative or guardian or the prosecuting attorney on a form subscribed to under oath which states that the applicant verily believes that the proposed patient is a fit subject for care, treatment and training in the school and asks that the subject be brought before the District Court for examination and commitment; that if the subject be a minor without parent or guardian, the Judge shall appoint a guardian ad litem to represent him. The statute further provides that the application shall be accompanied by a written history of the proposed patient certified under oath by an examining physician in which he answers prescribed questions touching suitability of the subject for admission to the school. The court shall, upon receipt of the application and history, cause the proposed patient to be examined by a physician and psychologist separately, and each shall certify that the subject is fit for care, treatment and training at the school. Provision is made for a hearing on the application pursuant to notice before a judge of the District Court, and it becomes the duty of the County and Prosecuting Attorney to "appear and prosecute the application on behalf of the state". § 9-449. The applicant, at least one examiner and the patient (unless his presence would be injurious to him) shall be present, and the court is authorized to require any other person to appear and testify. The application, history and certificates of suitability by the two doctors are expressly made a part of the evidence in the case, and the statute pertinently provides that the proposed patient "may be represented by counsel". § 9-449. A jury may be demanded, and if it is found that the patient should be committed, the judge may forthwith order commitment.

Pursuant to this procedure, and at the instance of the mother, the application for Parker's commitment was signed by the County Attorney, and a hearing was conducted at which the prosecuting attorney, the certifying psychologist and the mother as natural guardian were all present. While the certifying physician did not appear, both his and the certifying psychologist's certificates of suitability were admitted into evidence. At no time during the hearing was Charles Parker represented by retained or appointed counsel, nor was he represented by a court appointed guardian ad litem. Parker was found to be a fit subject and was committed to the training school where he remained continually until 1963, at which time he was released to the custody of his parents. In 1965, against the wishes of his parents, he was returned to the training school where he remains to this day.

Subsequent to Parker's return to the school, this federal habeas corpus proceedings¹ was instituted alleging that he had been denied his constitutional right to counsel and confrontation in the proceedings pursuant to which he was originally confined in the training school. On remand the trial judge held that in view of Gault, Parker was constitutionally entitled to the assistance of counsel in the original commitment proceedings, and that while his mother as natural guardian could have waived his rights, she did not expressly do so.

In the posture in which the case comes to us on this appeal the constitutionality of the Wyoming statute as according due process is not directly in issue. The state apparently takes the position, as indeed it must, that the standards for due process erected in Gault are not the same as required in civil proceedings such as these. The argument seems to be that the nature of the proceedings in Gault is easily distinguishable from ours in that Gault was concerned with commitment for correction or rehabilitation of juveniles, while our proceedings are concerned solely with civil commitment for teaching and training the mentally deficient.

It is true that Gault involved procedures for adjudging a juvenile offender "Delinquent" and committing him to a state institution. The query was whether he is entitled to the same Fourteenth Amendment due process procedures required to deprive an adult of his freedom for the commission of a crime. The effect of the decision was to place both juveniles and adults on the same Fourteenth Amendment due process footing. Mr. Justice Fortas reasoned that, "It is of no constitutional consequence * * * that the institution to which a juvenile is committed is called an Industrial School. The...