John S., In re

• Decision Date: 25 January 1977
• Citation: 135 Cal.Rptr. 893,66 Cal.App.3d 343
• Parties: In re John S., a minor, on habeas corpus. Civ. 48519.
• Court: California Court of Appeals Court of Appeals

Page 893

135 Cal.Rptr. 893

66 Cal.App.3d 343

In re John S., a minor, on habeas corpus.

Civ. 48519.

Court of Appeal, Second District, Division 2, California.

Jan. 25, 1977.

As Modified Feb. 1, 1977.

Rehearing Denied Feb. 22, 1977.

Hearing Granted and Appeal Dismissed April 20, 1977.

Irell & Manella, Robert L. Winslow, Peter M. Hoffman, by Peter M. Hoffman, Los Angeles, for appellants.

Wilbur F. Littlefield, Public Defender, Harold E. Shabo, Sandra Wruck, Laurance S. Smith, Deputy Public Defenders, by Laurance S. Smith, Los Angeles, for respondent.

No appearance by respondent Medical Director, Westwood Hospital.

FLEMING, Acting Presiding Justice.

John S., a minor admitted by his parents to a private mental hospital, petitioned the superior court for a writ of habeas corpus to obtain his release. ¹ The court ordered a hearing and appointed the public defender to represent the minor. At the hearing minor's parents opposed the petition, and minor's father filed a declaration setting out minor's history of involvement with dangerous explosives and with powerful drugs. According to the declaration, minor had seriously injured himself with explosives on two occasions, had been using various drugs, and had been incapacitated by drugs both before and after his admission to the hospital; minor had showed only limited progress in the private mental hospital because he failed to confront his problems; in father's opinion, it would not be feasible or proper at that time for minor to return to the family home. Counsel for minor contended the father's allegations could be easily disproved. The court did not undertake to evaluate these contentions or inquire into the facts, but granted the petition as a matter of law: 'I do hold that although the parent has the right to place a minor into a locked facility, into a mental health hospital, that the minor has the right to demand and will automatically be ordered released unless there is a filing under the Lanterman-Petris-Short Act. [LPS Act. ² * * * [Minor] is now ordered released as soon as he can be processed. He is now ordered released from further confinement which, as I have indicated, I find involuntary because he does not want to remain.'

Parents appeal the order granting minor's release. ³

I

The appeal presents preliminary procedural questions of mootness and of authority for representation.

First, is the cause moot? Subsequent to the superior court's order directing minor's release, stayed by this court pending appeal, parents moved him from the private mental hospital to a private halfway house and school. Minor has since reached the age of majority and is now free from parental custody and control. Yet the issue in this case remains of broad public concern. Similar though not identical cases are pending in the California Supreme Court (In re Roger M. S., Crim. 19558) and in the United States Supreme Court (Kremens v. Bartley, 75-1064; Parham v. J. L., 75-1690). The issue presented here may often arise yet persistently evade review by reason of passage of time or cessation of the challenged conduct. (Carroll v. Princess Anne (1968) 393 U.S. 175, 178-179, 89 S.Ct. 347, 21 L.Ed.2d 325.) Parents and minor remain strongly at odds on the underlying legal question (cf. DiGiorgio Fruit Corp. v. Dept. of Employment (1961) 56 Cal.2d 54, 58, 13 Cal.Rptr. 663, 362 P.2d 487), and we do not consider parents' removal of minor from the private mental hospital an abandonment of their appeal. (Gould v. Grubb (1975) 14 Cal.3d 661, 666-667, n. 4, 122 Cal.Rptr. 377, 536 P.2d 1337.) We therefore exercise our inherent discretion to resolve the issue presented by exhaustive briefs on appeal. (In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737; see Kates and Barker 'Mootness in Judicial Proceedings: Toward a Coherent Theory,' 62 California Law Review 1385, 1387-1388, 1433-1435 (1974).)

Second, does the public defender possess authority to represent minor? Parents contend he lacks statutory authority to undertake such representation, and they argue that since they may be held liable for the cost of the public defender's services to minor (Gov.Code, § 27,712) the appointment infringes their exclusive authority to contract for services rendered to the minor. However, Government Code section 27706, subdivision (d), authorizes the public defender to represent any person who is not financially able to employ counsel in proceedings under the LPS Act (Phillips v. Seely (1974) 43 Cal.App.3d 104, 113, 117 Cal.Rptr. 863), and the superior court's appointment of the public defender to represent minor was thus consistent with its substantive ruling that minor is entitled to the protection of LPS Act. Duties of the public defender include collateral and incidental activities that promote the accomplishment of his statutory mandate. (Ligda v. Superior Court (1970) 5 Cal.App.3d 811, 825, 85 Cal.Rptr. 744.) A natural corollary to representation of persons under the LPS Act is representation of persons who claim they are entitled to rights under the Act, even if it should ultimately be determined they are not entitled to those rights. (As to the right to counsel in a LPS proceeding see Thorn v. Superior Court (1970) 1 Cal.3d 666, 675, 83 Cal.Rptr. 600, 464 P.2d 56.) A further basis for representation may be found in Government Code section 27706, subdivision (e), which allows the court to order the public defender to represent any person entitled thereto under the juvenile court law, for, as we discuss later, the petition for habeas corpus may tender issues germane to the juvenile court law. Finally, subdivision (g) of the same section authorizes the public defender to represent any person under detention 'in a proceeding of any nature.' ⁴ We think the reach of this subdivision is sufficiently broad to encompass unwanted detention of any description. In any event since minor petitioned for writ of habeas corpus on his own behalf, the cause would be before the court whether or not the public defender appeared on his behalf. ⁵ Both the court and the litigants profit from the labors of counsel. In our view the petition tendered issues appropriate for public defender representation and the court's appointment of the public defender to represent minor was proper. We note that the parents have not been charged for the public defender's services nor is there any present indication the public defender will seek an order for such charges; hence we need not resolve the inchoate issue of the parents' liability for services of counsel to the minor. ⁶

II

The appeal presents a single substantive question: Are parents, as natural guardians of their minor child, authorized to detain their child in a private mental hospital for treatment without the child's consent and without reference to the standards and judicial oversight of the LPS Act?

1. Implicit Statutory Authority. Minor first contends the question must be resolved in his favor because no statute expressly authorizes parents to detain their minor child in such a facility. Closest in point is Welfare and Institutions Code section 6002, which allows the person in charge of a private mental hospital to receive for care and treatment any person suffering from mental disorder who voluntarily and competently applies for admission, or on whose behalf a conservator with special powers has applied for admission. ⁷ The statute provides that a voluntary adult patient may leave the hospital at any time but that a conservatee may leave only on notice given by his conservator. Minor reasons that because the statute fails to mention admission of minors by their parents minors cannot be so admitted under the statute.

We do not concur in this conclusion. Authority of parents to admit and remove their minor children at a state mental hospital is expressly recognized by Welfare and Institutions Code section 6000. The volition there specified is clearly that of the parents, not the minor. The section provides that '[i]n the case of a minor person, the application [for admission] shall be made by his parents . . .' Further: 'A minor person who is a voluntary patient may leave the hospital or institution after completing normal hospitalization departure procedures after notice is given to the superintendent or person in charge by the parents . . . of their desire to remove him.' (Emphasis added.) A Fortiori the identical authority implicitly rests with the parents in the admission and removal of a minor from a private mental hospital. This same assumption, that parents control the care and treatment of their minor children, permeates our legislative codes. (E. g., Civ.Code, §§ 25.5, 25.6, 25.7, 25.8, and 34.5 [minor's limited rights to consent to certain medical treatment]; Health & Saf.Code, § 38110 [parental consent for treatment of developmentally disabled person]; Prob.Code, § 1444 [judicial consent in absence of parental consent to minor's medical treatment]; Welf. & Inst.Code, § 5325.5 [parental right to refuse lobotomy or shock treatment for minor].) Fortifying this assumption is the specific provision of section 6002 authorizing certain conservators to admit and remove their conservatees from private mental hospitals. Conservatorship is a limited form of guardianship, the conservatee being a person for whom 'a guardian could be appointed' (Prob.Code, § 1751; Board of Regents v. Davis (1975) 14 Cal.3d 33, 38, fn. 6, 120 Cal.Rptr. 407, 533 P.2d 1047); and since parents are the natural guardians of their minor children (In re White (1942) 54 Cal.App.2d 637, 640, 129 P.2d 706), they necessarily hold all rights of a statutory guardian or conservator of the person.

2. Absence of Constitutional Objection. Minor's other contention rests on the constitutional claim that his involuntary confinement in a private mental hospital on his parents' authorization violates his rights to due process and equal protection of law. Minor points out he enjoys...