In re ROGER S., a Minor, on Habeas Corpus, 19 Cal. 3d 921

Opinion WRIGHT, J. By petition for writ of habeas corpus Roger S., a 14-year-old minor, seeks release from the Napa State Hospital to which he was admitted on May 10, 1976, on application by his mother made pursuant to Welfare and Institutions Code

section 6000, subdivision (b).* Petitioner asserts that his confinement is unlawful, arguing that

section 6000, subdivision (

b) does not afford procedural due process to minors “voluntarily” admitted thereunder. He further asserts that

section 6000, subdivision (

b) denies equal protection to such minors because it permits their' admission even though they are neither “gravely disabled” nor dangerous to themselves or others, a standard which applies to minor wards of the court, and denies them the procedural protections to which wards are entitled under the Lanterman-Petris-Short Act. (§§ 5000-5401; In re Michael E.(1975) 15 Cal.3d 183 [123 Cal.Rptr. 103, 538 P.2d 231].) We have concluded that although the personal liberty interest of a minor is less comprehensive than that of an adult, and a parent or guardian not only may but must curtail that interest in the proper exercise of his obligation to guide the child’s development, in the area of admission to a state hospital a minor of 14 years or more possesses rights which may not be waived by the parent or guardian.

Among these rights is the right guaranteed under the Fourteenth Amendment to the United States Constitution, and

article I,

section 7(

a) of the California Constitution, to procedural due process in determining whether the minor is mentally ill or disordered, and whether, if the minor is not gravely disabled or dangerous to himself or others as a result of mental illness or disorder, the admission sought is likely to benefit him.

We shall explain below the basis for our conclusion and, as guidance to the Legislature in formulating new statutory procedures to protect these minors against possible arbitrary admission to mental hospitals, we shall outline those procedures which will afford at least those minimum protections to which they are constitutionally entitled. The Liberty Interest of Minors “Personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.” (People v.

Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375].) It is beyond dispute that a principal ingredient of personal liberty is “freedom from bodily restraint” {Meyer v. Nebraska (1923) 262 U.S. 390, 399 [67 L.Ed. 1042, 1045, 43 S.Ct. 625, 29 A.L.R. 1446]) and that minors as well as adults are “persons” under the Constitution who are entitled to the protection of that right. {Tinker v.

Des Moines School Dist. (1969) 393 U.S. 503, 511 [21 L.Ed.2d 731, 740, 89 S.Ct. 733].) Only last term the United States Supreme Court reaffirmed the right of minors to constitutional rights and protection. “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” (Planned Parenthood of Cent. Mo. v.

Danforth (1976) 428 U.S. 52, 74 [49 L.Ed.2d 788, 808, 96 S.Ct. 2831, 2843].) It is equally well established, however, that the liberty interest of a minor is not coextensive with that of an adult. “[E]ven where there is an invasion of protected freedoms ‘the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.’ ” (Ginsberg v. New York (1968) 390 U.S. 629, 638 [20 L.Ed.2d 195, 203, 88 S.Ct. 1274]; Prince v.

Massachusetts (1944) 321 U.S. 158, 170 [88 L.Ed. 645, 654-655, 64 S.Ct. 438].) Parents, of course, have powers greater than that of the state to curtail a child’s exercise of the constitutional rights he may otherwise enjoy, for a parent’s own constitutionally protected “liberty” includes the right to “bring up children” (Meyer v. Nebraska, supra, 262 U.S. 390, 399 [67 L.Ed. 1042, 1045]), and to “direct the upbringing and education of children.” {Pierce v.

Society of Sisters (1925) 268 U.S. 510, 534-535 [69 L.Ed. 1070, 1077-1078, 45 S.Ct. 571, 39 A.L.R. 468].) As against the state, this parental duty and right is subject to limitation only “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens.” (Wisconsin v.

Yoder (1972) 406 U.S. 205, 234 [32 L.Ed.2d 15, 35, 92 S.Ct. 1526].) It is settled that a minor is entitled to the protections of due process whenever the state itself initiates action, whether civil or quasi-criminal, to deprive a minor of his liberty. {In re Gault (1967) 387 U.S. 1 [18 L.Ed.2d 527, 87 S.Ct. 1428]; Goss v.

Lopez (1975) 419 U.S; 565, 574 [42 L.Ed.2d 725, 734-735, 95 S.Ct. 729]; In re Winship (1970) 397 U.S. 358, 367 [25 L.Ed.2d 368, 37, 90 S.Ct. 1068]; In re Arthur N. (1976) 16 Cal.3d 226 [127 Cal.Rptr. 641, 545 P.2d 1345].) We have not had occasion heretofore, however, to consider whether the minor may assert the same or similar rights when a parent already entitled to his custody and control initiates the action in the exercise of the parent’s responsibility to obtain for the minor that care which the parent reasonably believes necessary to the proper upbringing of his child.

Petitioner assumes, and respondent does not dispute, that the detention of Roger in a state hospital is “state action,” and that the state, albeit at the behest of Roger’s mother, is therefore a significant participant in depriving Roger of the greater personal liberty which he would have outside the hospital. Respondent also recognizes, as he must, that even a conditional liberty interest, such as that of a minor, is entitled to the protections of due process when the state is involved to any significant degree in its diminution. (Cf. Morrissey v.

Brewer (1972) 408 U.S. 471, 484 [33 L.Ed.2d 484, 496, 92 S.Ct. 2593].) The parties do not agree, however, on what process is due, nor do they address themselves to the question of a parent’s power to waive or otherwise relinquish his child’s due process rights. We shall address the latter question first.

The Extent of Parental Power If, within his power to direct his child’s upbringing, a parent may place the child in a state operated mental hospital and require him to remain there, just as he may place the child in a public hospital for treatment of a physical condition, it follows that he may waive those due process rights that the child might assert if the state sought the hospitalization. As noted above, we have concluded that as to minors 14 years of age or older, the parental power is not this comprehensive.

The consequences of confining a person, minor or adult, involuntarily in a mental hospital are quite different and impinge much more directly on the liberty interest of the patient than does confinement for treatment of physical illness. Not only is there physical restraint, but there is injury to protected interests in reputation (see Goss v. Lopez, supra, 419 U.S. 565, 574 [42 L.Ed.2d 725, 734-735]; Wisconsin v. Constantineau (1971) 400 U.S. 433, 437 [27 L.Ed.2d 515, 519, 91 S.Ct. 507]), an interest in not being improperly or unfairly stigmatized as mentally ill or disordered. (People v.

Burnick (1975) 14 Cal.3d 306, 321 [121 Cal.Rptr. 488, 535 P.2d 352].) Additionally, we note again the uncertainties in psychiatric diagnosis and the divergence of expert views (People v. Burnick, supra, 14 Cal.3d 306, 326) which render the possibility of mistake significantly greater than in diagnosis of physical illness. We are not alone in recognizing these uncertainties. (See O’Connor v. Donaldson (1975) 422 U.S. 563, 579 [45 L.Ed.2d 396, 409, 95 S.Ct. 2486], conc. opn. of Burger, C.

J.) The serious consequences attendant upon involuntary commitment of a minor as a mentally ill or disordered person, and the significant potential for error in diagnosis convinces us that a minor who is mature enough to participate intelligently in the decision to independently assert his right to due process in the commitment decision must be permitted to do so. We recognize that permitting the child to independently assert his right does to some extent conflict with parental authority, but a substantial state interest justifies recognition of the minor’s right.

The United States Supreme Court, in confirming the right of a parolee to due process in proceedings, to revoke parole, recognized a similar interest. “The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole ....

And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness.” (Morrissey v. Brewer, supra, 408 U.S. 471, 484 [33 L.Ed.2d 484, 496].) Here, too, society has an interest in the future development of the child, in avoiding diagnosis and/or commitment based on erroneous information and .evaluation thereof, and in assuring the child fair treatment.

An erroneous conclusion by a parent that his child is mentally ill or in need of treatment in a closed mental hospital facility might well “jeopardize the health or safety of the child, or have a potential for significant social burdens,” factors recognized by the United States Supreme Court as justifying a limitation on parental authority. (Wisconsin v. Yoder, supra, 406 U.S. 205, 234 [32 L.Ed.2d 15, 35].) The therapeutic importance of granting due process to juveniles in commitment proceedings cannot be overlooked.

Studies “suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process—may be a more impressive and more therapeutic attitude so far as the juvenile is concerned.” (In re Gault, supra, 387 U.S. 1, 26 [18 L.Ed.2d 527, 545].) Neither the state, nor the parent, has an interest in committing a child to a state mental hospital for care and treatment if the child is not in need of treatment or if treatment can be provided without so drastically curtailing the freedom of the child.

Recognition of the child’s right to demand due process in the proceedings leading to commitment does not therefore impermissibly impinge on the parent’s right to control the upbringing of his child. Nor would such recognition of the child’s right to due process in proceedings to admit him to a state mental hospital necessarily weaken the family unit. The contrary may be true. Rejecting a similar argument in Planned Parenthood of Cent. Mo. v.

Danforth, supra, 428 U.S. 52 [49 L.Ed.2d 788, 96 S.Ct. 2831, 2844], the Supreme Court suggested that conditioning a minor’s right to an abortion on parental consent by allowing the parent to overrule the minor’s decision would not strengthen the family unit or enhance parental authority if the parent and the minor are “so fundamentally in conflict.” Here too, the parent and petitioner are in conflict, but here it is the minor who wishes to return to and the parent who would remove the minor from the family unit.

A decision that petitioner is indeed in need of treatment for mental illness or disorder that can best be given in a hospital, fairly made after proceedings in which petitioner has been afforded due process, may well help him to accept the need for and thus be more receptive to treatment. If, on the other hand, it appears that the minor is not mentally ill or disordered, or that treatment can be given without removing him from the home, the family unit may be strengthened.

Indeed, the Supreme Court has suggested that a court may have a duty to explore possible alternatives to the involuntary commitment of a juvenile, citing with apparent approval Lake v. Cameron (D.C.Cir. 1966) 364 F.2d 657 [124 App.D.C. 264], which arose in the context of a mentally ill adult. {In re Gault, supra, 387 U.S. 1, 28, fn. 41 [18 L.Ed.2d 527, 546].) We conclude, therefore, that no interest of the state or of a parent sufficiently outweighs the liberty interest of a minor old enough to independently exercise his right to due process to permit the parent to deprive him of that right.

Inasmuch as petitioner is 14 years of age we need not consider whether there may be circumstances in which younger children may also be entitled to assert their right to due process independently when opposed to a parental decision to institutionalize the child. We are persuaded, however, that 14 years is the appropriate age at which such rights must be recognized. In affirming that minors have fundamental constitutional rights that the state must respect, the Supreme Court has also emphasized the responsibility of minors to respect their obligations to the state. {Tinker v.

Des Moines School Dist., supra, 393 U.S. 503, 511 [21 L.Ed.2d 731, 740].) Traditionally, and modemly by statute, minors have, been presumed competent to accept responsibility for criminal acts at age 14. (Pen. Code, § 26; In re Gladys R. (1970) 1 Cal.3d 855, 863-864 [83 Cal.Rptr. 671, 464 P.2d 127].) It would be anomalous indeed if they were not also presumed to have sufficient capacity to exercise due process rights at that age.

The Demands of Due Process and Equal Protection Respondent contends that the existing procedures for “voluntary” admission of minors to state hospitals afford due process because no minor is admitted to a state hospital unless he has first been screened and referred by a local agency in accordance with

section 5651, subdivision (f). Respondent alleges that at Napa State Hospital this requirement is met when a designated “Community Mental Health Professional” screens the child to “insure that hospitalization is necessary” and ascertains if “appropriate” placement is available in the community, in which case no referral is made.

Following a decision to •refer a minor for hospitalization a representative of the Community Mental Health Clinic telephones a counterpart at the state hospital and relates the “clinical picture of the minor.” If the staff at Napa State Hospital believes the minor is “appropriate for treatment in our program,” more clinical material is requested and an admission date is arranged.

Respondent concedes that if the state admitted a child to a state mental hospital without “prior approval of a disinterested and competent third party” the procedure would be constitutionally suspect, but argues that the requirement of prior screening and referral by a community mental health professional only after determination that no community placement is available, and the review by state hospital personnel to assure that admission of the minor to the hospital program is “appropriate” fully satisfies the demands of due process.

Petitioner, on the other hand, claims not only that due. process entitles him to all of the substantive and procedural rights extended to adults and minor wards of the court, but that failure to accord him equivalent rights denies him equal protection of the law in violation of the Fourteenth Amendment to the United States Constitution and

article I,

section 7(

b) of the California Constitution.

The rights to which petitioner claims to be entitled are those accorded under the Lanterman-Petris-Short Act for evaluation and treatment of mentally disordered persons which we held in In re Michael E., supra, 15 Cal.3d 183, are applicable to juvenile court wards.* **** He would include the substantive right not to be involuntarily hospitalized without a determination that he is gravely disabled or dangerous to himself or others as a result of mental disorder, and the procedural rights to counsel, to notice and judicial hearing, to confrontation and cross-examination, to present evidence on his own behalf, and to a jury trial.

We do not agree that equal protection precludes involuntary placement of mentally ill minors in state operated mental hygiene facilities if the minors are neither gravely disabled nor dangerous to themselves or others. The liberty interest of an adult may sufficiently outweigh the state’s interest in promoting optimal mental health that the state may not confine a nondangerous adult solely for the purpose of treating that person’s mental illness. Clearly the state may not involuntarily confine a harmless mentally ill individual without providing treatment. (O’Connor v.

Donaldson, supra, 422 U.S. 563, 576 [45 L.Ed.2d 396, 407].) Whether or not it might constitutionally do so, the Legislature has not permitted involuntary confinement of harmless mentally ill adults or juvenile court wards in state mental hospitals unless they are gravely disabled.

It does not follbw, however, that a nondangerous minor is denied equal protection if his parent is permitted to obtain treatment for the minor’s mental illness or disorder by such placement for “[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” (Tigner v. Texas (1940) 310 U.S. 141, 147 [84 L.Ed. 1124, 1128, 60 S.Ct. 879, 130 A.L.R. 1321]; see also Estelle v.

Dorrough (1975) 420 U.S. 534, 538-539 [43 L.Ed.2d 377, 381-382, 95 S.Ct. 1173].) The liberty interest of a minor is qualitatively different than that of an adult, being subject both to reasonable regulation by the state to an extent not permissible with adults (Planned Parenthood of Cent. Mo. v. Danforth, supra, 428 U.S. 52, 74 [49 L.Ed.2d 788, 808, 96 S.Ct. 2831, 2843]; Ginsberg v. New York, supra, 390 U.S. 629, 638 [20 L.Ed.2d 195, 203]; Prince v.

Massachusetts, supra, 321 U.S. 158, 170 [88 L.Ed. 645, 654-655]), and to an even greater extent to the control of the minor’s parents unless “it appears that the parental decisions will jeopardize the health or safety of the child or have a potential for significant social burdens.” (Wisconsin v. Yoder, supra, 406 U.S. 205, 234 [32 L.Ed.2d 15, 35].) Minors in the circumstances of petitioner, therefore, are not “similarly situated” with adults for purposes of equal protection analysis.

When, as here, a parent seeks to exercise the parent’s right to direct his child’s upbringing, a right which we have recognized as “a compelling one, ranked among the most basic of civil rights” (In re B. G. (1974) 11 Cal.3d 679, 688 [114 Cal.Rptr. 444, 523 P.2d 244]) by obtaining for the child treatment that the parent believes to be advisable, the parent is not precluded from obtaining that treatment at a state hospital simply because it might be available elsewhere or because the state could not force an adult to accept the same treatment.

Were that the rule, not only would some minors be denied treatment if the parents were unable to afford private care of a similar kind, but the parent would be denied the right to choose the type of care the child would receive even though the parent “may have a better understanding of the best interests of his child than does the juvenile court.” (Id., at p. 694.) Finally, admissions such as that of petitioner are distinguishable from those of court wards because although the state is necessarily involved, the placement of the child in the hospital is initiated by the parent.

No right is denied these minors by permitting their admission to state hospitals by their parents even though nondangerous court wards could not be committed unless mentally retarded or gravely disabled (see In re Michael E., supra, 15 Cal.3d 183, 193, fn. 14; In re L. L. (1974) 39 Cal.App.3d 205 [114 Cal.Rptr. 11]). As to both classes of minors the state has the same interest—that they mature into healthy adults capable of full participation in society.

By providing care in state hospitals, the state has made treatment available to nondangerous mentally ill children for whom adequate care is not available in the community either because the local community does not have a comparable closed treatment facility or because the parent cannot afford the expense of care in such a facility.

Both public and private closed facilities other than state hospitals are available to the juvenile court, however, and wards may be placed in these facilities and given psychiatric treatment at public expense. (§§ 739, subd. (c), 888, 900; In re Aline D. (1975) 14 Cal.3d 557, 566-567 [121 Cal.Rptr. 816, 536 P.2d 65].) That one class of minors is compelled by factors unrelated to state action to receive treatment in a state hospital while another receives it in a county facility or closed private school or hospital does not in our view deny equal protection to either class. (See Reed v.

Reed (1971) 404 U.S. 71, 75-76 [30 L.Ed.2d 225, 229-230, 92 S.Ct. 251]; Barbier v. Connolly (1885) 113 U.S. 27, 32 [28 L.Ed. 923, 925, 5 S.Ct. 357].) The question remains whether petitioner has been afforded due process. We do not accept either petitioner’s suggestion that all of the procedures required by the Lanterman-Petris-Short Act are mandated by due process or respondent’s assertion that the procedures presently being followed satisfy constitutional requirements. Due process forbids the arbitrary deprivation of liberty (Goss v.

Lopez, supra, 419 U.S. 565, 574 [42 L.Ed.2d 725, 734-735]) and, in the context of commitment to a mental hospital requires at least “that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.” (Jackson v.

Indiana (1972) 406 U.S. 715, 738 [32 L.Ed.2d 435, 451, 92 S.Ct. 1845].) Thus, the focus of our attention must be to delineate procedures that will ensure the child a fair opportunity to establish that (1) he is not mentally ill or disordered, or that, (2) even if he is, confinement in a state mental hospital is unnecessary to protect him or others and might harm .rather than improve his condition.

Procedures designed to establish these facts are necessary to accommodate both the parent’s right to control his child’s development and the state’s interest in limiting parental control when parental action may harm the physical or mental health of the child. (Wisconsin v. Yoder, supra, 406 U.S. 205, 230 [32 L.Ed.2d 15, 33]; Stanley v. Illinois (1972) 405 U.S. 645, 650-651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208].) We emphasize here our assumption that the great majority of parents are well motivated and act in what they reasonably perceive to be the best interest of their children.

That fact cannot, however, detract in any way from the child’s right to procedures that will protect him from arbitrary curtailment of his liberty interest in such a drastic manner no matter how well motivated.

That the present screening procedure does not. offer an adequate forum in which to resolve either the disputed questions of fact, upon which the psychiatric diagnosis of mental illness or disorder may rest in part, or conflicting medical opinions as to whether the minor is mentally ill or disordered and in need of the treatment to be provided by the state hospital is forcefully illustrated by the instant case. Respondent asserts that petitioner is in the “borderline defective category” and is presently diagnosed as suffering from latent schizophrenia for which he is receiving an antipsychotic drug.

The diagnosis is based in part on a history which accompanied him at the time of admission.’The history recited that petitioner had been verbally and physically aggressive toward his mother, had threatened suicide, and had threatened to jump off a roof.

Respondent admits, however, that petitioner has “maintained for several months without aggressive, destructive acts,” and “is not gaining from further hospitalization.” Petitioner, on the other .hand, denies that he is psychotic, that he suffers from a latent form of schizophrenia, that he has a history of aggressive behavior, or that he has threatened harm to himself or others.

In support of his claim that he is not mentally ill or disordered and is not in need of and will not benefit from the treatment program of the hospital, he alleges that after a preadmission evaluation at the Gladman Memorial Hospital a physician concluded that petitioner is “clearly not psychotic,” while a psychologist concluded that he was not only not psychotic, but was “a vulnerable youngster who has most of his energy focused on his own self protection.” Two other physicians from the same facility recommended that petitioner not be confined by a placement such as that at a juvenile hall since he “cannot tolerate physical restraint and needs space.” Notwithstanding these conflicting diagnoses and evaluations of petitioner’s needs he was admitted to the Napa State Hospital where he has allegedly been confined in a complex which has barred windows and locked doors in an open ward with 40 other minors some of whom are so severely disturbed that they are unable to dress themselves.

He alleges that he has been approached sexually by other boys whose advances he has repelled, and he fears further such advances. While he has been hospitalized two other minors have attempted suicide. In light of the drastic invasion of the minor’s right to personal liberty and the potential damage that may accompany an erroneous diagnosis and placement of a minor child in a mental hospital, the failure to accord petitioner an opportunity for a precommitment hearing before a neutral factfinder cannot be justified.

Respondent’s suggestion that the postadmission evaluation by the hospital staff is adequate to avoid misdiagnosis ignores both the diametrically opposed views to which precommitment and postadmission evaluation led in the instant case, and the fact that neither postadmission evaluation or even a postadmission hearing would afford the minor the benefit of a hearing in the community where his witnesses would be readily available and alternative resources better understood. (Cf. Morrissey v.

Brewer, supra, 408 U.S. 471, 485 [33 L.Ed.2d 484, 496].) Clearly, postadmission procedures would be inadequate to avoid the trauma of removal of the child from the home and unnecessary placement in a mental hospital. The Supreme Court has described as a “root requirement” of due process the obligation to give an individual “an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” (Boddie v.

Connecticut (1971) 401 U.S. 371, 379 [28 L.Ed.2d 113, 119, 91 S.Ct. 780], italics in original. See also, Fuentes v. Shevin (1972) 407 U.S. 67, 82 [32 L.Ed.2d 556, 570-571, 92 S.Ct. 1983].) Surely, the individual’s interest in personal liberty can be accorded no less protection. When the state participates in deprivation of a person’s right to personal liberty, even a conditional liberty, due process requires that the facts justifying that action be reliably established.

To that end the United States Supreme Court has suggested that, at a minimum, due process requires that the person receive a hearing after adequate written notice of the basis for the proposed action; an opportunity to appear in person and'to present evidence in his own behalf; the right to confrontation by, and the opportunity to cross-examine, adverse witnesses; a neutral and detached decision maker; findings by a preponderance of the evidence; and a record of the proceeding adequate to permit meaningful judicial or appellate review. (Cf. Morrissey v.

Brewer, supra, 408 U.S. 471, 489 [33 L.Ed.2d 484, 499]; In re Gault, supra, 387 U.S. 1.) Inasmuch as a minor • may be presumed to lack the ability to marshal the facts and evidence, to effectively speak for himself and to call and examine witnesses, or to discover and propose alternative treatment programs, due process also requires that counsel be provided for the minor. (Cf. Gagnon v. Scarpelli (1973) 411 U.S. 778, 790-791 [36 L.Ed.2d 656, 666-667, 93 S.Ct. 1756]; In re Gault, supra, 387 U.S. 1, 36 [18 L.Ed.2d 527, 551]; Gee v.

Brown (1975) 14 Cal.3d 571 [122 Cal.Rptr. 231, 536 P.2d 1017]; In re Ricky H. (1970) 2 Cal.3d 513 [86 Cal.Rptr. 76, 468 P.2d 204]. We do not accept petitioner’s suggestion that he is entitled to a jury trial and a judicial hearing. Minors do not have a constitutional right to a jury trial in juvenile proceedings, even those which have penal overtones. (People v. Superior Court (Carl W.) (1975) 15 Cal.3d 271, 274 [124 Cal.Rptr. 47, 539 P.2d 807]; McKeiver v.

Pennsylvania (1971) 403 U.S. 528 [29 L.Ed.2d 647, 91 S.Ct. 1976].) It follows that minors do not have any greater right in purely civil commitment proceedings. Although the Legislature has extended a statutory right to a jury trial in those commitments which are undertaken pursuant to the Lanterman-Petris-Short Act, equal protection does not require identical procedures.

As we have heretofore noted, the minor whose hospital admission is sought by parents who retain the right to control their child’s upbringing, including the type and extent of medical and/or psychiatric treatment the child shall receive is not similarly situated with the class of minors who have been adjudicated wards or dependent children of the court. Since the jury is not a necessary component of accurate factfinding (McKeiver v.

Pennsylvania, supra, 403 U.S. 528, 543 [29 L.Ed.2d 647, 659-660]), absent some basis upon which to conclude that a neutral judge or hearing officer will not offer a decision making process substantially equivalent to a jury trial, neither due process nor equal protection requires that this decision be by jury. For similar reasons we decline to hold that due process or equal protection mandates a judicial hearing. Although the informal atmosphere that can be achieved in a juvenile court may suggest that court as an appropriate forum, a judicial hearing is not constitutionally compelled.

We are cognizant that when personal liberty is at stake and institutionalization the object of the proceeding, a judicial hearing is the norm. (See, e.g., Jackson v. Indiana, supra, 406 U.S. 715; In re Gault, supra, 387 U.S. 1; Baxstrom v. Herold (1966) 383 U.S. 107 [15 L.Ed.2d 620, 86 S.Ct. 760].) We recognize, too,'that due process requires a judicial hearing whenever the state seeks to deprive an adult of his liberty by committing him to a mental hospital.

When the parent who already has the right and obligation to control a child’s personal liberty seeks, in the exercise of that right, to place the child in a mental hospital, however, an administrative hearing may be adequate to satisfy due process. The United States Supreme Court has upheld administrative hearings when the state, which already has custody, seeks to curtail the conditional liberty interest of a parolee or probationer. (Morrissey v. Brewer, supra, 408 U.S. 471; Gagnon v.

Scarpelli, supra, 411 U.S. 778.) We conclude therefore that due process does not require that the hearing be conducted by a judge. By analogy, we also conclude that because the proceedings to admit a mentally ill or disordered minor to a state hospital are within the parental right to custody and control of his child, whereas the rights of the child and the interest of the state are limited to preventing hospitalization that because unnecessary or potentially ineffective may be harmful to the physical or mental health of the child, the reasonable doubt standard of proof is inapplicable. (Cf.

In re Arthur N., supra, 16 Cal.3d 226.) The lesser standard of proof by a preponderance of the evidence which is applicable to dependency proceedings (§ 701), and the dispositional phase of delinquency proceedings (In re Winship, supra, 397 U.S. 358, 366 [25 L.Ed.2d 368, 376-377]) will also satisfy due process in hearings on a parent’s application to admit a minor child to a state hospital. Our holding that procedures established by the Department of Health to implement the authorization of

section 6000, subdivision (b), for admission of minors to state hospitals denies minors 14 years of age and older due process does not require the release of all such minors now confined in state hospitals. They have been placed there by parents whom we presume have acted in the best interests of their children. Their judgment has been ratified by both the local community mental health professional and by the medical staff of the hospital.

A precipitous release of these children to families and community facilities unprepared to care for them could be both disruptive to the treatment program and potentially harmful to the child and the community. They are, however, entitled to a hearing, if they so request, on the propriety of their continued confinement. Those minors 14 years of age or older now confined in state hospitals under voluntary admissions pursuant to

section 6000, subdivision (b), may therefore seek relief by petition for writ of habeas corpus, alleging that they are not mentally ill or disordered, or that, even if they are mentally ill, they are not gravely disabled or dangerous and the treatment for which they are confined is not reasonably likely to be beneficial. If the petition states such a prima facie case, an order to show cause should issue, and a hearing should be held. If the court finds, after the hearing, that the minor is not mentally ill or disordered, he must be released.

If the court finds that the minor is mentally ill or disordered but is not gravely disabled or dangerous to himself or others, the minor is entitled to his release only if the court also finds that treatment in the state hospital is not reasonably likely to be of benefit to him. Petitioner unsuccessfully sought relief by petition to the superior court of the county in which he is confined but no hearing has been held to determine whether a basis exists for his continued confinement. The superior court is the appropriate forum in which to adjudicate disputed issues of fact.

No writ having issued on his last application to the superior court, petitioner is not precluded from again seeking relief by petition to that court. (Pen. Code, § 1475.) The order to show cause is therefore discharged and the petition denied without prejudice to a renewed application for relief in the superior court. Tobriner, Acting C. J., Mosk, J., and Sullivan, J., concurred. Retired Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council. Unless otherwise specified all references are to the Welfare and Institutions Code.

Section 6000 provides: “Pursuant to the rules and regulations established by the State Department of Health, the medical director of a state hospital for the mentally disordered or mentally retarded may receive in such hospital, as a boarder and patient, any person who is a suitable person for care and treatment in such hospital, upon receipt of a written application for the admission of the person into the hospital for care and treatment made in accordance with the following requirements: “(

a) In the case of an adult person the application shall be made voluntarily by the person at a time when he is in such condition of mind as to render him competent to make it or, if he is a conservatee with a conservator of the person or persons and estate . . . by his conservator. “(

b) In the case of a minor person, the application shall be made by his parents, or by the parent, guardian or other person entitled to his custody to any of such mental hospitals as may be designated by the Director of Health to admit minors on voluntary applications. . . .” We have no occasion in the instant case to consider the lawfulness of the

section 6000, subdivision (

b) admission procedure as applied to children under 14 years of age, nor do we consider, here whether parents may compel minors 14 years of age or older to submit to medical and/or psychiatric treatment in a closed private facility, or on an outpatient basis. Increasing legislative recognition is also being accorded to the capacity of minors to participate intelligently in decisions affecting their lives. (See, e.g., § 700; Civ. Code, §§ 34.5, 34.6, 225, 4600; Prob. Code, § 1406.)

Section 5650, a part of the Short-Doyle Act (§ 5600 et seq.) requires each county to ■ submit annually to the director of health a plan for community mental hygiene services.

Section 5651 specifies the matters to be included in the plan and provides following subdivision (f): “No mentally disordered person shall be admitted to a state hospital prior to screening and referral by an agency designated by the county Short-Doyle plan to provide this service.” Petitioner claims also that since wards have now been given the right to voluntarily commit themselves (§ 6552) equal protection requires that nonwards have the same option.

Since petitioner has never attempted to assert or been denied that right, since he denies that he suffers from a mental disorder, and he asserts that he is entitled to be released from the state hospital because he is not in need of and does not wish to receive treatment there, we need not consider this claim. “Gravely disabled” in the present context is defined in subdivision (h)(1) of

section 5008. “(

h) For purposes of

Article 1 (commencing with

Section 5150),

Article 2 (commencing with

Section 5200), and

Article 4 (commencing with

Section 5250) of

Chapter 2 of this part, and for the purposes of

Chapter 3 (commencing with

Section 5350) of this part, “gravely disabled” means: “

(1) A condition in which a person, as a result of a mental disorder, is unable to provide for his basic personal needs for food, clothing, or shelter;. . . “A person of any age may be ‘gravely disabled’ under this definition, but the term does not include mentally retarded persons.” (See also In re Gonzales (1971) 6 Cal.3d 346, 351 [99 Cal.Rptr. 17, 491 P.2d 809].) Sectiorr 5300 permits certification of an “imminently dangerous” person for 90-day periods of treatment if after 14 days of intensive treatment the person: “(

a) Has threatened, attempted, or inflicted physical harm upon the person of another after having been taken into custody for evaluation and treatment, and who,'as a result of mental disorder, presents an imminent threat of substantial physical harm to others, or “(

b) Had attempted or inflicted physical harm upon the person of another, that act having resulted in his being taken into custody and who presents, as a result of mental disorder, an imminent threat of substantial physical harm to others. “For purposes of this

article ‘custody’ shall be construed to mean involuntary detainment under the provisions of this part uninterrupted by any period of unconditioned release from a facility providing involuntary care and treatment.” Suicidal persons may not be detained involuntarily for treatment beyond 14 days unless they are subject to commitment under

section 5300 or are the object of conservatorship proceedings for the “gravely disabled” under

section 5350 et seq. (8 5264.) Not to be overlooked is the possibility that a full hearing prior to a decision to admit a minor to a state hospital will reveal that the parent or parents seeking the admission are a contributing factor in the child’s problem, that treatment of the child will be effective only if the family is counseled together, or that placement outside the home in foster care or a less restrictive environment than that of the hospital will better serve the minor’s needs. (See Ellis, Volunteering Children: Parental Commitment of Minors to Mental Institutions (1974) 62 Cal.L.Rev. 840, 859-862.) A minor may, of course, waive any of these rights and acquiesce in the parent’s decision to place him in a state hospital for treatment, thus achieving what is in practical effect a “voluntary” admission.

To be truly voluntary and intelligent in a constitutional sense such a waiver should be made only if the minor is aware of his rights and the consequences of the waiver, including the nature of the commitment, its probable duration, and the treatment regimen.

It has been suggested that a waiver by a minor should not be accepted unless accompanied by a certificate of his counsel attesting that the attorney has consulted with the minor about the proposed commitment, explained his right to protest it, described possible alternatives and ascertained that the minor wished to enter the hospital without a hearing. (See Ellis, supra, fn. 9, at p. 906.) Although minors 14 years of age and older may no longer be admitted under

section 6000, subdivision (b), absent a voluntary and intelligent waiver of their rights as outlined above, we anticipate that the Legislature will adopt legislation to assure due process to minors whose parents apply for their admission. In the interim commitment under the Lanterman-Petris-Short Act is available to assure treatment and confinement of those minors whose condition is such that they are gravely disabled or dangerous to themselves or to others.

We anticipate that, as in the instant case, the public defender of the county of the minor’s residence, and/or the state public defender, will identify and assist those minors who may be entitled to release in the preparation and filing of these petitions. Rctired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.