Clarifying AB 665 Legislative Sleight of Hands
Opponents aren't actually wrong about the language of the law
As AB 665, which would allow 12 year old minors in California to enter residential group homes without parental consent, sails towards passage, a number of legislators and allied journalists have minimized concerns of opponents and attacked parents.1
I previously wrote that AB 665 proposes a law that would be unconstitutional.2 Supporters of AB 665 have ignored these concerns as well as the practical concerns of parents.3 Instead, their common argument is that AB 665 is a minor change to already existing law and it simply allows Medi-Cal to cover these services.
But this argument is inaccurate. For one thing, AB 665 does not propose to add Medi-Cal authorization for payment coverage of these services anywhere in the text of the actual law, which addresses medical services to which minors can consent. Moreover, while the changes proposed by AB 665 appear small, they are actually significant changes to existing law. AB 665 does this with two legislative sleights of hand.
I. First Legislative Sleight of Hand
Here’s what current California law says:
“A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if both of the following requirements are satisfied:
(1) The minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services.
(2) The minor (A) would present a danger of serious physical or mental harm to self or to others without the mental health treatment or counseling or residential shelter services, or (B) is the alleged victim of incest or child abuse.”4
Here’s what the proposed new law under AB 665 would say:
“A minor who is 12 years of age or older may consent to mental health treatment or counseling on an outpatient basis, or to residential shelter services, if the minor, in the opinion of the attending professional person, is mature enough to participate intelligently in the outpatient services or residential shelter services.”5
Spot the difference?
The current law does not allow any child who has reached 12 years of age to enter therapy or enter residential shelter services without parental consent just because they feel like it and the person in charge or assistant thinks it would be a good idea. That’s still the case even if private insurance allegedly will cover these services.
Instead, the current law allows a minor to enter residential shelter services only under extenuating circumstances when the child faces great personal risk of harm. Or in situations where the child has been harmed and needs immediate assistance.
Child Protective Services or law enforcement uses that same standard when making a determination of whether to take temporary custody of a child from a parent.6
That is, the decision is made under emergency situations where there’s overwhelming evidence that the parents are unfit and allowing the children to stay with the parents pending an investigation or court hearing would allow further harm to come to the child.7 Child protective services might do this in situations where a child has clearly been the victim of incest or child abuse.8
It tracks with our American system of criminal law, where one is innocent until proven guilty.9 However, this does not stop law enforcement from arresting criminal suspects and holding them in custody until the end of trial.10 That said, there are constitutional requirements that ensure fairness in both contexts.11
Those are missing when the state allows a third party to decide for themselves, without hearing or any kind of evidentiary standard, that they should have custody of a minor because they believe themselves to be superior to the minor’s parents.
Now, a different provision of California law, the Health and Safety Code, currently provides:
Notwithstanding any provision of law to the contrary, a minor who is 12 years of age or older may consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.12
This law is what currently allows minors, who are at least 12 years old, in California to enter therapy without parental consent if the therapist believes the minor is capable and would benefit.13 Here, there is no requirement of a child facing imminent harm. AB 665 also does not amend this current law. Instead, it amends the other law.
For some, this current provision of the Health and Safety Code may go too far in restricting constitutional parental rights. After all, a parent is responsible for making medical care decisions for their children and deciding who their child will be allowed to associate with.14 In some ways, this law does strip parents of that right.15 After all, shouldn’t parents be the ones ultimately deciding whether their child enters therapy? Or deciding whether they approve of, feel comfortable with, and trust an individual therapist for their child?
Of course, many would argue that mental health counseling provides a major health benefit for minors, vital for a minor’s health and well-being. In the event where a minor could suffer long lasting harm because of a parent’s unwillingness to let them seek much-needed mental healthcare, the minor should not have to suffer.
In terms of a making medical decisions for a child, there is also a key limitation. Both the Health and Safety Code and Family Code still prevent the prescription of psychotropic drugs to minors without parental consent, even those in mental health therapy.16 To be fair, AB 665 does not propose changing that.17
But again, either way, the current law only authorizes minors who are 12 years old to seek out mental health counseling. It does not authorize unemancipated minors who have turned 12 years old to enter residential shelters without parental consent.
Perhaps allowing a minor to get mental health counseling without a parent’s consent unconstitutionally interferes with the control, care, and custody of that child. The point is debatable.
But allowing children to live in other locations without the consent of their parents, because of a decision made by a third party who is not even an officer of the court, where even notice to the parents is not required in all instances, undeniably takes away custody of children from their parents.18
And it represents a significant change to our current law.
II. Second Legislative Sleight of Hand
The other significant change that AB 665 enacts is the dramatic expansion of who can decide to take shelter of your children without your parental consent.
Under the current law, “residential shelter services” is defined, in part, as “The provision of other support services on a temporary or emergency basis by any professional person as defined in paragraph (2).”19
Under AB 665, the law would remain the same, reading “The provision of other support services on a temporary or emergency basis by any professional person as defined in paragraph (2).”20
On the surface, it’s the same. But look beneath the surface there’s a significant change.
AB 665 changes Paragraph (2) of Section 6924(a) of the Family Code to define a “professional person” in part as “A professional person as defined in Section 124260 of the Health and Safety Code.”21
Under the current law, a “professional person” who may take in your children for residential shelter on a temporary basis is:
A Psychiatrist, Psychologist, Social Worker, or Marriage, Family, and Child Counselor who is qualified to serve as a Director of County Mental Health Services Department.22
A formally licensed marriage and family therapist.23
A licensed educational psychologist.”24
A credentialed school psychologist.25
A clinical psychologist licensed by California who has earned a doctorate degree in psychology from an accredited institution and has at least two years of clinical experience in either (1) a multidisciplinary facility that provides health care that is licensed or operated by California, another state, or the United States, or (2) a multidisciplinary facility that provides health care that is listed in the latest edition of the National Register of Health Service Providers in Psychology, as adopted by the Council for the National Register of Health Service Providers in Psychology.26
The chief administrator of a governmental agency that provides mental health treatment or counseling on an outpatient basis.27
An associate marriage and family therapist working under the supervision of a licensed professional.28
A licensed professional clinical counselor.29
A registered associate professional clinical counselor working under the supervision of a licensed supervisor.30
These individuals are all licensed and trained to spot signs of child abuse as well as mental illness. These are the individuals who would be best equipped to detect if a child was a victim of sexual abuse or was at risk of harming themselves or others.
More importantly, they are all individuals who are either supervisors of departments or working directly under those supervisors. They are also people in positions of public trust where making a rash or unwise choice with the children of others would have negative professional consequences.
AB 665 will continue to include all of these individuals within the definition of a “licensed professional”. However, AB 665 also adds the following individuals to that definition:
An unlicensed psychologist who works under the supervision of a psychologist with license.31
A registered psychological assistant who works under the supervision of a psychologist with a license.32
A psychology trainee who works under the supervision of a psychologist with a license.33
A licensed social worker.34
An unlicensed social worker who is under the supervision of a social worker with a license.35
An unlicensed marriage and family therapist trainee who is working under the supervision of a marriage and family therapist with a license.36
A psychiatrist, as long as they are eligible for board certification.37
A person licensed to practice professional clinical counseling.38
An unlicensed person practicing professional clinical counseling under the supervision of a person who practices professional clinical counseling with a license.39
As one can see, in addition to the current individuals, AB 665 adds nine additional third parties who now are authorized to decide that your children should not be allowed to live with you and should live with them instead, regardless of what you think. This list includes unlicensed trainees who cannot legally charge for providing mental health services.
While all of these individuals may be qualified to provide mental health care in different forms and perform necessary and often admirable work, this changes existing law. An unlicensed trainee in social work does not currently possess the sole authority to decide that children should live with them instead of their parents with the discretion as to whether they bother to notify the parents.
In some cases, it is unclear what the benefit is to adding these individuals. For example, a psychiatrist prescribes psychotropic medication to patients. Since a psychiatrist cannot prescribe psychotropic medication to a minor without parental consent, why should they have the authority to provide residence to the children of others without parental consent and without having to notify the parents?
Either way, AB 665 significantly alters existing law. It is thoroughly inaccurate to say otherwise.
III. Conclusion
AB 665 does more than enact minor tweaks to the law. And it does not simply allow Medi-Cal to cover medical care that private health insurance does. Instead, it enacts changes that likely violate both the United States and California Constitutions. To suggest that AB 665 does not change the existing law is simply inaccurate.
Parents have every reason to be concerned about the practical effects of AB 665 if it becomes law. Parents could find themselves in a situation where they effectively lose custody of their children without a judicial hearing, without even knowing about it. Parents have every reason to fear predators legally gaining access to their children for malevolent purposes. And parents who provide relatively loving and happy homes have every reason to fear losing their children this way.
Moody and angsty teenagers who have relatively minor yet extremely dramatic disputes with their parents (an actually common occurrence for teenagers) might rush out of their parents’ home for what they erroneously think is a better life. And those teens, who require greater protection, could legally place themselves into bad situations, incurring great and unnecessary harm that they otherwise would not have.
Additionally, there’s another practical concern that apparently no one elected to the California State Legislature has had the capacity to contemplate.
It’s not hard to imagine a 12 or 13 year old minor, who is very well-provided for but emotionally neglected by disconnected parents, running off to live at a group home or with an unlicensed trainee in social work or clinical research, not telling their parents about their new residence, and not contacting their parents at all. The third party does not notify the parents because they have decided in their absolute discretion, as AB 665 gives them, that the parents don’t need to be involved.
Those emotionally neglectful and disconnected parents, who still love their children, will eventually notice that their child is missing and are likely to contact law enforcement. Law enforcement will then engage in a massive search for a child whom they believe to be missing and possibly in danger, deploying significant law enforcement resources to a search and urgently warning the public.
The discovery that this 12 or 13 year old child has legally moved into a new group home or moved in with the unlicensed social worker trainee of their choice will result in a massive waste of critical law enforcement resources. Incidents like these will also likely diminish the public’s capacity to pay attention to future alerts for missing children. Because members of the public will wonder if a child has been kidnapped from their home or if they’ve simply decided to go live with a random psychiatrist.
So, despite suggestions of State Senator Scott Wiener (D-San Francisco) to the contrary, those opposed to AB 665 are not hateful, immoral, homophobic, and transphobic bigots looking to be part of a “right wing outrage machine” of “misinformation” and “disinformation”.
At least not all opponents of AB 665 are. Some have practical concerns.
But all citizens should be concerned over the constitutional infirmity. It’s one thing to see the Legislature pass a law long thought to be constitutional only for it to be later struck down by a court that comes to realize the law violates the Constitution.
However, it’s quite another to enact a law that clearly violates established constitutional precedent. It wastes time and taxpayer money. Worse, it is a demonstration of elected officials refusing to abide by their most basic duty of elective office, which is to uphold and defend the Constitution.40 Senator Wiener may personally dislike many provisions of both the California and United States Constitutions. He is still legally obligated to follow them.
There are certainly some extremely bad parents out there who should not have custody of their children, but as the United States Supreme Court has explained, “the statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.”41
AB 665 applies to all parents - good, bad, average, and complex - and treats them the same, which the United States Supreme Court has already held is unconstitutional.42 This legislation should not be passed.
https://apnews.com/article/fact-check-california-bill-mental-health-youth-custody-628928834873
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
Why Proposed Legislation in California to Allow Unemancipated Minors as Young as 12 to Enter Residential Shelters Without Parental Consent is Unconstitutional
The California State Senate is currently considering AB 665, a bill co-authored by State Senator Scott Wiener (D-San Francisco), that will allow unemancipated minors who are 12 years old or older to enter residential treatment centers without parental consent or parental involvement. While AB 665 easily passed the State Assembly and passed a State Senat…
Cal. Fam. Code § 6924(b)(emphasis added).
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