In re Antoine C.

Opinion

WIENER, J. In 1977 the California Supreme Court held in In re Roger S. (1977) 19 Cal.3d 921 [141 Cal.Rptr. 298, 569 P.2d 1286] that minors 14 years of age and older must be afforded certain due process rights when the minor’s parents seek to admit the minor into a state psychiatric hospital. The minor’s potential loss of liberty “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 appellate review. [Citations.]” (In re Roger S., supra, at pp. 937-938.) The court also stated, “Inasmuch as a minor may be [426]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. [Citations.]” (At p. 938; italics supplied.)

In 1984 the San Diego County Superior Court adopted Rules for Lanterman-Petris-Short Mental Health Matters (LPS Rules). The procedures which must be followed when a minor is to be hospitalized in a public facility for treatment or evaluation of a mental disorder are contained in appendix II of those rules. When a hearing becomes necessary, the hearing officer must appoint counsel, a minor’s rights advisor, for the minor. (LPS Rules, App. II, rule V, subd. (d)(1).) A minor’s rights advisor is not a lawyer.1

Antoine C. successfully argued to the superior court that his being furnished a nonlawyer advisor violated Roger S. The trial court decided, and we believe correctly, that when the Supreme Court used the word “counsel” to describe the minor’s rights of due process in precommitment hearings, the Supreme Court meant attorney.

Drawing on United States Supreme Court precedent describing why the concept of due process requires flexibility and informality in its application (see Gagnon v. Scarpelli (1973) 411 U.S. 778 [36 L.Ed.2d 656, 93 S.Ct. 1756]) and the wisdom of using nonlawyer advisors who unlike lawyers have mental health expertise to assist in the recommendation of alternative programs for the minor, the county contends “counsel” means nonlawyers. The county also argues that since this case is analogous to the certification review hearing under Welfare and Institutions Code section 5250 et seq. governing the review of orders certifying a person for intensive treatment because of a mental disorder or chronic alcoholism, the Legislature’s use of the nonlawyer advocate under Welfare and Institutions Code section 5256.4 can be used as support for the county’s decision to use a nonlawyer minor’s rights advisor.