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

A public defender asked whether parents who applied for their minor child's voluntary admission to a treatment facility could later obtain the child's discharge before a court decided whether further treatment was needed. The 1980 Attorney General answered no. G.S. 122-56.7(f), added in a 1979 rewrite, said that after admission "only the court or the treatment facility may release the minor" when it determined further hospitalization was unnecessary.

The question turned on "admission." The AG read that word as the child's original placement in the facility on the parent's application, not the court's later hearing decision. G.S. 122-56.3 described voluntary admission by application; G.S. 122-56.5 let a parent or guardian apply for a child; G.S. 122-56.7(a) measured the hearing deadline from the day the minor was "admitted." Subsection (b) then allowed the court to "concur" with that admission or order release.

The opinion says the ten-day judicial-hearing requirement was enacted in 1975. The 1979 rewrite added subsection (f) and a provision allowing the period before the hearing to be extended up to thirty days. The AG mentions the U.S. Supreme Court's 1979 Parham decision as background to the national debate; it does not say either North Carolina provision was enacted in response to that decision.

Currency note

This opinion was issued in 1980 under Chapter 122 as then written. Check current North Carolina mental-health admission law before relying on its procedural rule today.

What this means for you

Parents and guardians. Under the opinion's 1980 reading, the person who applied for the child's admission could not unilaterally remove the child before the hearing. The facility or the court had to determine that further hospitalization was unnecessary.

Treatment facilities and counsel. The AG treated the initial entry as the relevant admission for subsection (f), while the judicial hearing occurred later. The opinion gives no separate procedure for a parent's release request.

Common questions

Could the parent reverse a voluntary admission before the ten-day hearing?

No, under the AG's conclusion. After the initial admission, only the court or treatment facility could release the minor upon finding no need for further hospitalization.

When did the ten-day hearing requirement arise?

The opinion says the 1975 General Assembly enacted the predecessor statute requiring that hearing. The 1979 legislature rewrote the section and added subsection (f).

Did the AG say the legislature enacted the rule because of Parham?

No. The opinion cites Parham to show the issue's national importance, but gives no causal account tying North Carolina's legislation to that decision.

Did this opinion replace an earlier AG opinion?

It says the statutory change superseded any conflicting conclusion or language in a 1975 AG opinion reported at 45 N.C.A.G. 25.

Background and statutory framework

The 1975 predecessor of G.S. 122-56.7 required a judicial hearing within ten days for voluntary admissions of minors and incompetent adults. The 1979 rewrite added subsection (f), reserving release after admission to the court or facility, and subsection (d)'s possible extension of the pre-hearing period. The AG interpreted the timing by reading G.S. 122-56.3, G.S. 122-56.5, and subsections (a), (b), and (f) of G.S. 122-56.7 together.

Citations

• G.S. 122-56.3
• G.S. 122-56.5
• G.S. 122-56.7(a)
• G.S. 122-56.7(b)
• G.S. 122-56.7(d)
• G.S. 122-56.7(f)
• Parham v. J. L., 442 U.S. 584 (1979)
• 45 N.C.A.G. 25 (1975)

Source

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

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