If a North Carolina parent voluntarily admits their child to a psychiatric or mental-health treatment facility, can the parent later remove the child before the required judicial hearing happens?

Plain-English summary

Voluntary admission of a minor to a psychiatric or mental-health facility in North Carolina is not really voluntary on the child's side; the parent or guardian fills out the application under G.S. 122-56.5. To protect the child, the General Assembly built in a judicial check: within 10 days of admission (extendable to 30 under G.S. 122-56.7(d)), a court hearing must determine whether continued hospitalization is needed.

The 1980 opinion addressed a tricky question that arose between admission and the hearing. If the parent changed their mind, perhaps because the family wanted to try a different course of treatment, or because the child was begging to come home, could the parent simply walk into the facility and withdraw the application?

The AG said no. The 1979 rewrite of Chapter 122 added G.S. 122-56.7(f) with deliberate language: "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."

The key interpretive question was what "admission" meant in subsection (f). Did it refer to the original entry into the facility on the parent's application, or only to the formal court-ordered admission after the judicial hearing? The AG concluded it meant the original entry. Reading Article 4 of Chapter 122 as a whole made the point clear: G.S. 122-56.3 set up "voluntary admission by execution of an application"; G.S. 122-56.5 said the parent applied on behalf of the minor; and G.S. 122-56.7(a) said the judicial hearing happened "within 10 days of the day a minor is admitted to a treatment facility pursuant to G.S. 122-56.5." That admission and the (f) admission were the same.

The structural significance of this reading was substantial. It meant the parent who set the admission in motion could not unilaterally unwind it. Only the treatment facility's professional judgment (the child does not need further hospitalization) or the court's judicial determination at the hearing could release the child. The 30-day extension in subsection (d) made this protection more important, not less, because the pre-hearing period could stretch a full month.

The AG noted the 1975 statutory predecessor had been ambiguous on this point, and the AG's office had issued an opinion on the old language (45 N.C.A.G. 25 (1975)). The 1980 opinion expressly superseded any contrary conclusion in the 1975 opinion. The 1979 statutory rewrite was meant to settle the question.

The opinion also pointed to Parham v. J. L., 442 U.S. 584 (1979), the landmark U.S. Supreme Court case decided just months before the rewrite. Parham held that due process requires some neutral fact-finder to confirm that institutionalization of a minor is medically warranted, but that the parents' decision and the admitting physician's medical judgment were the primary safeguards. The North Carolina rewrite responded to Parham by adding the 10-day judicial check and the (f) anti-withdrawal rule. The judicial check protected the child against an erroneous parental decision; the anti-withdrawal rule protected the child against a parent who might pull them out of treatment before the medical judgment about the child's needs could be evaluated.

Currency note

This opinion was issued in 1980. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 122 was recodified to Chapter 122C in 1985-1986. The voluntary-admission provisions are now in G.S. 122C-211 et seq. The 10-day judicial hearing requirement and the prohibition on unilateral parental withdrawal continue in the modern provisions, but the section numbers and some procedural details have changed. Parham v. J. L. remains good law. Anyone facing a current situation should consult current Chapter 122C and recent NC Court of Appeals and Supreme Court decisions interpreting the voluntary-admission statutes.

Background and statutory framework

Voluntary admission of a minor to a mental-health facility sits at the intersection of three legal frameworks: the parent's traditional authority to make medical decisions for the child, the child's emerging constitutional rights, and the state's parens patriae interest in protecting children from harm (including parental decisions that might not serve the child's interest).

Before 1975, North Carolina law treated the parent's application as the final step. The child could be admitted on the parent's signature and the facility's acceptance, with no judicial check. This regime came under increasing pressure as the civil-rights movement and the deinstitutionalization movement of the 1970s prompted nationwide reconsideration of how children entered institutional care.

The 1975 General Assembly added a judicial-hearing requirement, but the statute was vague on the pre-hearing period. Could parents withdraw during the 10-day window? The 1975 AG opinion (45 N.C.A.G. 25) had taken one view; practitioners disagreed.

In 1979, two things happened. Parham v. J. L. was decided in June. Justice Burger's majority opinion endorsed the parents' presumptive role in seeking treatment for their child but required some neutral fact-finder to confirm the medical necessity. The North Carolina General Assembly rewrote G.S. 122-56.7 in the same session. The rewrite added the 30-day extension provision and the (f) anti-withdrawal rule. Together, these provisions answered Parham and tightened the rules.

The 1980 opinion was the AG's interpretation of the (f) rule's "admission" trigger. By reading "admission" to mean the original entry into the facility, the AG gave the (f) protection real teeth. A parent could not voluntarily admit a child and then change their mind hours or days later, leaving the child in a kind of limbo where neither the court nor the facility had ruled on the admission.

The opinion's reasoning method (read the statutory text together, look at the historical context, give effect to legislative intent) was unremarkable, but the result mattered. North Carolina's voluntary-admission practice for minors had a clear rule going forward: once admitted, the minor stayed admitted until a court hearing or a clinical determination of no further need.

The opinion did not address what to do if a parent objected loudly and persistently. The legal answer was clear: the parent had no authority to withdraw. The practical answer was less clear: facilities were left to manage upset parents while the case moved toward the court hearing.

Common questions

What if the parent files a petition for the child's release before the 10-day hearing?

The opinion did not address that. A parent could seek a writ of habeas corpus or other relief, but the statutory scheme contemplated the 10-day hearing as the forum to evaluate continued admission. A pre-hearing release motion would likely be folded into that hearing.

What if the facility itself wanted to discharge the child before the hearing?

The (f) rule expressly authorized that. The facility could release the minor when it determined that no further hospitalization was needed. This was a clinical decision by the facility's medical professionals, made on medical-necessity grounds.

Did this rule apply to incompetent adults too?

Yes. G.S. 122-56.7(f) covered both minors and persons adjudicated non compos mentis. The same rule and the same admission trigger applied.

Could a parent challenge the constitutionality of being unable to withdraw?

A parent might raise a parental-rights or due-process challenge. Parham itself addressed similar challenges and largely upheld parental authority subject to a neutral fact-finder check. After Parham, an attack on the (f) rule would face an uphill battle so long as the 10-day hearing was timely held.

Source

• Landing page: https://ncdoj.gov/opinions/infants-and-incompetents-release-of-a-minor-from-a-treatment-facility/

Citations

• G.S. 122-56.3 (voluntary admission by application)
• G.S. 122-56.5 (parent/guardian application for minor)
• G.S. 122-56.7 (judicial hearing, 10-day rule, anti-withdrawal rule)
• Parham v. J. L., 442 U.S. 584 (1979)

Original opinion text

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 rewrote 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