The following opinion is presented on-line for informational use only and does not replace the official version. (Mich. Dept. of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

JUVENILES:

CHILDREN AND MINORS:

DEPARTMENT OF HUMAN SERVICES:

MENTAL HEALTH CODE:

TEMPORARY WARD OF THE COURT:

Procedure for admission of a minor court ward to a hospital for psychiatric treatment

In the case of a minor who is a temporary ward of the court under MCL 712A.2 et seq, a child care facility serving as the designee of the Michigan Department of Human Services and providing placement, care, and supervision for the court ward as a person in loco parentis is not required to obtain a court order before requesting emergency admission of the ward to a hospital for psychiatric treatment if the child care facility has reason to believe the child is a "minor requiring treatment" as defined in section 498b(b)(i) and (ii) of the Mental Health Code, MCL 330.1498b(b)(i) and (ii) and that the minor presents a serious danger to self or others. Nor is a court order required to admit the minor ward to the hospital if the appropriate health professionals determine that emergency admission is necessary under section 498h of the Mental Health Code, MCL 330.1498h. If it is determined by the appropriate health professionals that emergency admission of the minor ward for psychiatric treatment is not necessary, the child care facility, as the Department's designee and person in loco parentis, must obtain a court order empowering the facility to request admission of the minor to a hospital in accordance with section 498d(3)(a) of the Mental Health Code, MCL 330.1498d(3)(a).

Opinion No. 7220

October 20, 2008

Honorable Bruce Caswell
State Representative
The Capitol
Lansing, Michigan


      You have asked about the procedures for seeking civil admission to a hospital under the Mental Health Code, MCL 330.1498a et seq, for a minor ward of the court placed with the Michigan Department of Human Services (Department or DHS) for care and supervision.  In particular, you ask whether a facility caring for a minor court ward must first obtain court approval before requesting hospital admission to provide the minor emergency psychiatric care.
     
      Your question is prompted by an actual situation that arose in your district.  You advise that a facility1 that cares for children with developmental disabilities (the Facility) had a child placed in its care as a temporary ward of the court.2  From the facts presented, the minor ward came within the court's jurisdiction under Chapter XIIA of 1939 PA 288, MCL 712A.1 – MCL 712A.32, the chapter of the Probate Code specifying the authority and jurisdiction of the family division of the circuit court in proceedings concerning juveniles.  It further appears that the court removed the child from the parent or guardian and ordered the child placed with the Department of Human Services for care and supervision, and that the Department subsequently placed the child in foster care.3  For purposes of this opinion, it is assumed that the Facility was acting as the Department's agent or designee pursuant to contract.4
     
      The facts further indicate that when the minor ward experienced a psychotic episode over a long holiday weekend, the Facility's staff transported the child to a local hospital5 to have him admitted to the psychiatric unit, but they were unsuccessful in securing his admission.  While it is understood that the child received appropriate treatment some time later, you report that some of those involved in the incident were under the impression that the minor ward was initially denied admission due to a DHS6 regulation that requires the court to first approve this type of treatment and that admission was refused because access to the court was unavailable due to the holiday.  Staff inquiries and independent research have confirmed that no such regulation exists.  You ask whether court approval is nonetheless required by law under situations such as these.
     
      Your inquiry is best analyzed if broken down into three separate questions:  1) in the situation where a minor who is a temporary ward of the court pursuant to an order placing the child in the Department's physical custody and directing the Department to provide for the child's placement, care, and supervision, whether a facility acting as the Department's designee may request emergency admission to a hospital for psychiatric treatment of the child without a court order authorizing the facility to make that request; 2) if the health professionals determine admission is necessary under these circumstances, whether the child may be admitted without a court order authorizing the admission; and 3) in the situation where admission on an emergency basis is declined by the appropriate health professionals, whether the facility may request hospitalization for psychiatric treatment of the minor ward in some alternative way without a court order authorizing it to make that request.
     
      Answering these questions requires consideration of the Mental Health Code (Code), 1974 PA 258, MCL 330.1001 et seq, which provides civil admission procedures for individuals with mental illness.  Chapter 4A of the Code, entitled "Civil Admission and Discharge Procedures for Emotionally Disturbed Minors," governs the hospitalization of minors.  MCL 330.1498a – MCL 330.1498t.  A minor "shall be hospitalized only pursuant to the provisions of this chapter."  MCL 330.1498a.
     
      The procedure for emergency admission of a minor to a hospital for psychiatric treatment is set forth in MCL 330.1498h(1), which specifies the persons who may request emergency admission of a minor requiring treatment:
     

      A minor's parent, guardian, or person in loco parentis may request emergency admission of the minor to a hospital, if the person making the request has reason to believe that the minor is a minor requiring treatment and that the minor presents a serious danger to self or others.  [Emphasis added.]


     
      The Code defines the term "person in loco parentis" as "a person who is not the parent or guardian of a minor, but who has either legal custody of a minor or physical custody of a minor and is providing support and care for the minor."  MCL 330.1498c(a).  Accordingly, when a minor is removed from the custody of his or her parent or guardian and is placed, by court order, with the Department for care and supervision, the Department or its designee is deemed a person in loco parentis.
     

      The term "minor requiring treatment" is defined to mean either of the following:


      (i)  A minor with a substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life.
     
      (ii)  A minor having a severe or persistent emotional condition characterized by seriously impaired personality development, individual adjustment, social adjustment, or emotional growth, which is demonstrated in behavior symptomatic of that impairment.  [MCL 330.1498b(b) (i) and (ii).]

       In the factual situation described in your request, the Facility was acting as the Department's designee with respect to the minor and thus qualified as a person in loco parentis for the purpose of requesting admission for emergency psychiatric treatment.  Staff at the Facility apparently had reason to believe that the minor in their care fell into one or both of the above categories and presented themselves at the hospital as a person in loco parentis.  Section 498h(1) is unambiguous and makes no reference to a court order when a parent, guardian, or person in loco parentis requests emergency admission to a hospital of a "minor requiring treatment" who presents a serious danger to self or others. 
     
      The procedure for emergency admission is further described in subsections (2) and (3) of section 498h, MCL 330.1498h.  These provisions distinguish between those situations where the particular hospital is under contract to the "community mental health services program"8 and where that is not the case:


      (2)  If the hospital to which the request for emergency admission is made is not under contract to the community mental health services program, the request for emergency hospitalization shall be made directly to the hospital.  If the hospital director agrees that the minor needs emergency admission, the minor shall be hospitalized.  If the hospital director does not agree, the person making the request may request hospitalization of the minor under section 498d [MCL 330.1498d].
     
      (3)  If the hospital to which the request for emergency admission is made is under contract to the community mental health services program, the request shall be made to the preadmission screening unit of the community mental health services program serving in the county where the minor resides.  If the community mental health services program has a children's diagnostic and treatment service, the preadmission screening unit shall refer the person making the request to that service.  In counties where there is no children's diagnostic and treatment service, the preadmission screening unit shall refer the person making the request to the appropriate hospital.  If it is determined that emergency admission is not necessary, the person may request hospitalization of the minor under section 498d [MCL 330.1498d].  If it is determined that emergency admission is necessary, the minor shall be hospitalized or placed in an appropriate alternative program.  [Emphasis added.]

      To determine the meaning of these provisions, the foremost rule of statutory construction requires that the intent of the Legislature be effectuated as expressed in plain statutory language.  Halloran v Bhan, 470 Mich 572, 576-578; 683 NW2d 129 (2004).  The text of these two subsections indicates that, regardless of whether the request for admission is made directly to a hospital under either section 498h(2) or (3) or the request is referred to a children's diagnostic and treatment service under section 498h(3), the outcome regarding hospitalization turns on whether emergency admission is considered necessary by the appropriate health professionals.  The italicized language in subsections (2) and (3) of MCL 330.1498h above plainly indicates that if emergency admission is necessary, then the minor "shall be hospitalized."  The word "shall" here is unambiguous and denotes a mandatory, rather than discretionary action.  Roberts v Mecosta County Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002).  The italicized text addresses the situation where the minor needs emergency admission in plain language and it does not require a court order.  Thus, court approval is not required for emergency admission to a hospital for a minor requiring treatment under MCL 330.1498h(2) or (3).
     
      Returning to the facts presented in your request, the Facility's staff was not required to obtain a court order before seeking emergency admission of the child believed by the Facility's staff to be in need of treatment and presenting a danger to self or others.  Similarly, no court order was required to have the child admitted to the hospital if the health professionals determined that emergency admission of the child was necessary.  Here, however, the child was not admitted.  The question then arises whether the Facility's staff could have pursued an alternative avenue for gaining the admission of the child that did not require a court order after having been denied emergency admission of the minor ward.
     
      The language in both sections 498h(2) and (3) plainly indicates that, if it is determined that emergency admission is not necessary, then the person making the request may seek hospitalization of the minor under section 498d, MCL 330.1498d.  This section provides the only way under the Code that the person making the request to a hospital or preadmission screening unit of a community mental health services program may seek hospitalization of a minor ward for psychiatric treatment when it has been earlier determined that emergency admission is not necessary.  The relevant subsections of MCL 330.1498d thus warrant quoting at length:


      (1)  Subject to section 498e [MCL 330.1498e9] and except as otherwise provided in this chapter, a minor of any age may be hospitalized if both of the following conditions are met:

      (a)  The minor's parent, guardian, or a person acting in loco parentis for the minor or, in compliance with subsection (2) or (3), the family independence agency [now named the DHS] or county juvenile agency, as applicable, requests hospitalization of the minor under this chapter.

      (b)  The minor is found to be suitable for hospitalization.
     
      (2)  The [DHS] may request hospitalization of a minor who is committed to the [DHS] under 1935 PA 220, MCL 400.201 to 400.214 [concerning the Michigan Children's Institute].

      (3)  As applicable, [the DHS] may request hospitalization of, or the county juvenile agency may request an evaluation for hospitalization of, a minor who is 1 of the following:

      (a)  A ward of the court under chapter X [the Michigan Adoption Code] or XIIA of 1939 PA 288, MCL 710.21 to 710.70 and 712A.1 to 712A.32, if the [DHS] or county juvenile agency is specifically empowered to do so by court order.
     
      (b)  Committed to the [DHS] or county juvenile agency under the youth rehabilitation services act, 1974 PA 150, MCL 803.301 to 803.309, except that if the minor is residing with his or her custodial parent, the consent of the custodial parent is required.  [Emphasis added.]

      
      Where the text of a statute is plain and unambiguous, the Legislature is presumed to have intended the meaning it plainly expressed.  AFSCME v Detroit, 468 Mich 388, 399; 662 NW2d 695 (2003).  Moreover, critical words or phrases as well as their placement and purpose in the statutory scheme are considered.  Sweatt v Dep't of Corrections, 468 Mich 172, 179; 661 NW2d 201 (2003).  Words in a statute should not be construed in a void or read in isolation but should be read together in context to harmonize the meaning, giving effect to the act as a whole.  G. C. Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420-421; 662 NW2d 710 (2003). 
     
      In relevant part, section 498d(1)(a) reads that "a minor . . . may be hospitalized if . . . in compliance with subsection . . . (3), the [Department] . . . requests hospitalization of the minor under this chapter."  Section 498d(3)(a) reads in relevant part, "the [Department] may request hospitalization of . . . a minor who is . . . [a] ward of the court under chapter . . . XIIA of 1939 PA 288, MCL . . . 712A.1 to 712A.32, if the [Department] . . . is specifically empowered to do so by court order." 
     
      Under the plain language of section 498d(1)(a), a parent, guardian, or person acting in loco parentis may request non-emergency hospitalization without obtaining a court order unless the Department is the person in loco parentis.  For a minor court ward placed with the Department for care and supervision under Chapter XIIA, the Legislature plainly expressed under both subsections (1)(a) and (3)(a) of section 498d that the Department "may" request hospitalization only if the Department is "specifically empowered to do so by court order."  The Department's agents or designees act as the Department for purposes of this statute.  Reading subsections (1)(a) and (3)(a) of section 498d together and in context as required by the applicable rules of statutory construction, even though the Department or its designee is a person acting in loco parentis for a court ward, it is clear that the Legislature intended that the Department obtain a court order to request hospitalization of a court ward for psychiatric treatment under this section.10  Thus, in the situation where it has been determined by health professionals that emergency admission for psychiatric treatment is not necessary, Chapter 4A of the Mental Health Code requires the Department or its designee to obtain a court order before it may request a minor court ward's admission to a hospital in accordance with MCL 330.1498d(3)(a).
     
      It is my opinion, therefore, that, in the case of a minor who is a temporary ward of the court under MCL 712A.2 et seq, a child care facility serving as the designee of the Michigan Department of Human Services and providing placement, care, and supervision for the court ward as a person in loco parentis is not required to obtain a court order before requesting emergency admission of the ward to a hospital for psychiatric treatment if the child care facility has reason to believe the child is a "minor requiring treatment" as defined in section 498b(b)(i) and (ii) of the Mental Health Code, MCL 330.1498b(b)(i) and (ii) and that the minor presents a serious danger to self or others.  Nor is a court order required to admit the minor ward to the hospital if the appropriate health professionals determine that emergency admission is necessary under section 498h of the Mental Health Code, MCL 330.1498h.  If it is determined by the appropriate health professionals that emergency admission of the minor ward for psychiatric treatment is not necessary, the child care facility, as the Department's designee and person in loco parentis, must obtain a court order empowering the facility to request admission of the minor to a hospital in accordance with section 498d(3)(a) of the Mental Health Code, MCL 330.1498d(3)(a).  

MIKE COX
Attorney General

 

1 It is assumed that this referenced facility is a "child care organization" licensed by the Department of Human Services under MCL 722.115.  A child care organization is a "governmental or nongovernmental organization having as its principal function the receiving of minor children for care, maintenance, training, and supervision."  MCL 722.111(a).

2 A temporary court ward is a juvenile under 18 years of age concerning whom the circuit court has found under MCL 712A.2(b), by a preponderance of the evidence, either of the following circumstances to exist: 


       (1)  Whose parent or other person legally responsible for the care and maintenance of the juvenile, when able to do so, neglects or refuses to provide proper or necessary support, education, medical, surgical, or other care necessary for his or her health or morals, who is subject to a substantial risk of harm to his or her mental well-being, who is abandoned by his or her parents, guardian, or other custodian, or who is without proper custody or guardianship. . . .

* * *

       (2)  Whose home or environment, by reason of neglect, cruelty, drunkenness, criminality, or depravity on the part of a parent, guardian, nonparent adult, or other custodian, is an unfit place for the juvenile to live in.

       It is useful to clarify the terminology commonly used to describe minor wards.  A temporary court ward should be distinguished from a permanent court ward.  A permanent court ward is a minor concerning whom the court has made either of the above-mentioned findings and has also found, by clear and convincing evidence, that a ground has been established under MCL 712A.19b(3) to justify termination of parental rights to the minor.  A temporary or permanent court ward is sometimes referred to as a "ward of the court" or "court ward" to denote that the minor is under the jurisdiction of the court.  A court ward should be further distinguished from a state ward.  A state ward is a ward of the Michigan Children's Institute (MCI) created and established by 1935 PA 220, MCL 400.201 to 400.214.  A state ward is a minor whose parents' parental rights have been terminated and whom the circuit court has committed to the Department of Human Services for permanency planning, supervision, care, and placement under MCL 400.203.  This commitment to the Department divests the court of its jurisdiction over the minor.  In the Matter of Griffin, 88 Mich App 184, 191-192; 277 NW2d 179 (1979).    

3 "Foster care" means "care provided to a juvenile in a foster family home, foster family group home, or child caring institution licensed or approved under 1973 PA 116, MCL 722.111 to 722.128, or care provided to a juvenile in a relative's home under court order."  MCL 712A.13a(1)(e).

4 The Department may contract with a private agency to perform its duty to provide for the foster care of children.  MCL 400.14f and MCL 400.18c.

5 It is important to point out that mental health treatment is not the same as medical treatment.  The circuit court, a child placing agency, or the Department of Human Services may consent to routine, nonsurgical medical care, or emergency medical and surgical treatment for a minor placed in a child care organization pursuant to MCL 722.124a.  This statute, however, does not apply to hospitalization for psychiatric treatment.

6 The Michigan Department of Human Services was formerly named the Family Independence Agency.

7 The Department or its designee, such as a suitable relative caregiver or foster parent or other child care organization that actually has physical custody and is providing care and supervision for the minor, may make the request for emergency admission to the hospital for psychiatric treatment under MCL 330.1498h.

8 "Community mental health services programs" are the subject of Chapter 2 of the Mental Health Code, MCL 330.1200a – MCL 330.1245.  There "shall be a county community mental health agency, a community mental health organization, or a community mental health authority.  A county community mental health agency is an official county agency.  A community mental health organization or a community mental health authority is a public governmental entity separate from the county or counties that establish it."  MCL 330.1204(1).  The purpose of a community mental health services program "shall be to provide a comprehensive array of mental health services appropriate to conditions of individuals who are located within its geographic service area, regardless of an individual's ability to pay."  MCL 330.1206(1). 

9 MCL 330.1498e describes the process for evaluating a minor for whom a request for hospitalization has been made to determine the minor's suitability for hospitalization.

10 Unlike the situation involving a minor placed with the Department for supervision and care as a temporary court ward where the Department must first secure a court order before requesting non-emergency hospitalization of the ward for psychiatric treatment, the Department is not required to first request a court order in the situation involving a state (Michigan Children's Institute) ward under MCL 330.1498d(2).