Infants and Incompetents; Release of a Minor from a Treatment Facility

Subject:

Requested By: Mary B. Chamblee Assistant Public Defender Twenty-Sixth Judicial District

Question: Pursuant to the current provisions of G.S. 122-56.7, may parents who have applied for admission of their minor child to a treatment facility later obtain a discharge of the child prior to judicial determination of the need for further treatment at the treatment facility?

Conclusion: No. Only the Court or the treatment facility may release the minor child and only then upon determination that the child does not need further hospitalization.

The 1975 Session of the North Carolina General Assembly ratified the predecessor of G.S. 122-56.7 so as to mandate a judicial hearing within ten (10) days in the cases of voluntary admissions into the treatment facilities of minors and incompetent adults. The original statute did not specifically address the status of the juvenile/incompetent prior to the date of the hearing. This fact became generally recognized and resulted in considerable difference of opinion as to what the statute actually required and what the statute should require on this subject. It should be noted that in 1975 the Office of the Attorney General issued an opinion interpreting the old statute. See 45 N.C.A.G. 25 (1975).

The 1979 General Assembly reqrote this entire section and, among other changes, added a new sub-section (f) which provides as follows:

"(f) After admission, only the court or the treatment facility may release the minor or person adjudicated non compos mentis at any time when either determines that such person does not need further hospitalization."

Apparently, some differences of opinion still have arisen as to whether the parents, etc., may remove a minor child from the treatment facility during the period before the judicial hearing mandated by the statute. These differences of opinion stem from conflicting interpretations of the term "admission" — i.e., whether such means the original entry of the patient into the facility or the later order issued as a result of the judicial hearing. Perhaps the answer to this question is more important now than it was previously due to another new provision included in G.S. 122-56.7(d) permitting the extension of the hiatus before the hearing for a period up to thirty (30) days.

Examination of Article 4, Chapter 122, in its entirety, mandates the conclusion that the word "admission" in G.S. 122-56.7(f) refers to the original placement of the child in the facility. G.S. 122-56.3 sets forth the procedure for voluntary admission by execution of an application. G.S. 122-56.5 provides that, in the case of a child or incompetent, the parent, guardian, etc., shall act for the potential patient in making the application. G.S. 122-56.7(a) provides that the judicial hearing will be held ". . . within 10 days of the day a minor . . . is admitted to a treatment facility pursuant to G.S. 122-56.5." (Emphasis applied) On the other hand, significantly, in referring to the judicial hearing, G.S. 122-56.7(b) authorizes the court to ". . . concur with the voluntary admission of the minor . . ." (Emphasis applied) or to order release.

As indicated earlier, very strong feelings apparently exist, pro and con, on the issue of the authority of parents to place minor children in treatment facilities and to secure their release therefrom, versus the authority of the court to determine the need for admission and discharge. Proponents of differing view have been quite vocal on this subject nationwide. Demonstrating the importance of this question, the United States Supreme Court addressed it in 1979 in the landmark decision in the case of Parham v. J. L., a minor, etc., 442 U.S. 584 (1979).

Against this background, it can safely be assumed that the language of our General Assembly was arrived at after serious deliberation and after the balancing of all factors involved in safeguarding the health, welfare and individual rights of the minor children and all other persons involved. The language of the statute is specific in nature and requires the conclusion arrived at here.

In view of the change in the statute described above, this opinion will supersede any conflicting conclusion or language set forth in the prior opinion of the Attorney General promulgated at 45

N.C.A.G. 25 (1975).

Rufus L. Edmisten Attorney General

William F. O’Connell Special Deputy Attorney General