Why Proposed Legislation in California to Allow Unemancipated Minors as Young as 12 to Enter Residential Shelters Without Parental Consent is Unconstitutional

AB 665's Deep Constitutional Problems Explained

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 Senate committee today, there are deep constitutional flaws in the proposed legislation.¹

Namely, if enacted, AB 665 would violate the rights guaranteed to parents under the Due Process Clause of the Fourteenth Amendment as well as Section 1 and Section 7 of Article I of the California Constitution.²

The proposed text of AB 665 is the following:

“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.”³

“Residential shelter services” would be defined as “The provision of residential and other support services to minors on a temporary or emergency basis in a facility that services only minors by a governmental agency, a person or agency having a contract with a governmental agency to provide these services, an agency that receives funding from community funds, or a licensed community care facility or crisis resolution center.”⁴

“Residential shelter services” would also be defined as “The provision of other support services on a temporary or emergency basis by any professional person” who would be any “professional person” as defined under Section 124260 of the California Health and Safety Code or the chief administrator of a government agency.⁵

A “professional person” under Health and Safety Code Section 124260 includes:

1. A mental health professional

2. A marriage and family therapist

3. A licensed educational psychologist

4. A credential school psychologist

5. A clinical psychologist

6. A registered psychologist working under the supervision of a licensed professional

7. A registered psychological assistant working under the supervision of a licensed professional

8. A psychology trainee working under the supervision of a licensed professional

9. A licensed clinical social worker

10. An associate clinical social worker or a social work intern while working under the supervision of a licensed professional

11. A person registered as an associate marriage and family therapist or a marriage and family therapist trainee while working under the supervision of a licensed professional

12. A board certified, or board eligible, psychiatrist

13. A licensed professional clinical counselor

14. A person registered as an associate professional clinical counselor or a clinical counselor trainee working under the supervision of a licensed professional⁶

Under AB 665, “Mental health treatment or counseling services” would be defined as “the provision of mental health treatment or counseling on an outpatient basis by any of the following:

(A) A governmental agency.

(B) A person or agency having a contract with a governmental agency to provide the services.

(C) An agency that receives funding from community united funds.

(D) A runaway house or crisis resolution center.

(E) A professional person, as defined in paragraph (2).”⁷

Do parents have to be notified that their minor child has entered this center for residential shelter services?

No. AB 665 provides:

“A professional person offering residential shelter services, whether as an individual or as a representative of an entity specified in paragraph (3) of subdivision (a), shall make their best efforts to notify the parent or guardian of the provision of services.”⁸

Do parents have to be involved with the mental health treatment of their minor child? Not if the person treating the minor discusses the issue with the minor and decides for themselves that the parents need not be involved. AB 665 provides:

“The mental health treatment or counseling of a minor authorized by this section shall include involvement of the minor’s parent or guardian unless the professional person who is treating or counseling the minor, after consulting with the minor, determines that the involvement would be inappropriate.”⁹

Is there any kind of due process accorded to a parent who finds that their minor child has entered a residential treatment facility or any kind of consistent legal standard applied for when parental notification must occur? Again, no.

“The professional person who is treating or counseling the minor shall state in the client record whether and when the person attempted to contact the minor’s parent or guardian, and whether the attempt to contact was successful or unsuccessful, or the reason why, in the professional person’s opinion, it would be inappropriate to contact the minor’s parent or guardian.”¹⁰

To summarize AB 665:

If your 12 year old child runs away from home to a random group home for runaways or a crisis center, your child may do so without your parental consent or even your notification if a third party running that group home decides that you, the parent, do not need to be involved in your child’s mental health and really don’t need to know where your child is. So long as this third party talked it over with your 12 year old child and in their own personal best judgment determined your 12 year old would not benefit from your continued parental involvement.

Or anyone who qualifies as one of the fourteen different categories of a “professional person” under Health and Safety Code Section 124260 can take your 12 year old child into their home for “treatment” if, in their own personal best judgment, that person determines that it’s best for your child. Moreover, that “professional person” does not have to notify you, the parent, of their decision if, in their own personal best judgment, that person decides that it’s better for you to not know where your child is.

The only protection offered is that if a minor child decides to live in a group home or with a “professional person”, the custodial parents are not required to pay for the services in question.

“The minor’s parents or guardian are not liable for payment for mental health treatment or counseling services provided pursuant to this section unless the parent or guardian participates in the mental health treatment or counseling, and then only for services rendered with the participation of the parent or guardian. The minor’s parents or guardian are not liable for payment for any residential shelter services provided pursuant to this section unless the parent or guardian consented to the provision of those services.”¹¹

Additionally, “This section does not authorize a minor to receive convulsive therapy or psychosurgery as defined in subdivisions (f) and (g) of Section 5325 of the Welfare and Institutions Code, or psychotropic drugs without the consent of the minor’s parent or guardian.”¹² For those who are not aware of what that section refers to, that means lobotomy or other surgeries to the brain to correct behavior.¹³ So, AB 665 still requires parental consent for a minor child’s lobotomy.

While this may be good public policy (in the minds of some at least) and while Senator Wiener may believe deeply in its mission, AB 665 poses a significant constitutional problem.

The United States Constitution, as well as the California Constitution, protect what are known as parental rights.¹⁴ Having constitutionally protected parental rights means that generally speaking, the government does not have authority to tell parents how they are supposed to raise their children.¹⁵

But wait. Isn’t the concept of parental rights simply an extremist right wing, fascist, and white nationalist concept that is inherently rooted in toxic masculinity and white supremacy?

No. In fact, some of the greatest liberal and/or progressive judicial minds were strong defenders of constitutional parental rights.¹⁶

How are constitutional parental rights then defined?

As the California Supreme Court has held, “the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights”.¹⁷ “The federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law. A parent’s interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.”¹⁸

“Parents possess a profound interest in the custody of their children.”¹⁹ The “essence of custody is the companionship of the child and the right to make decisions regarding his [or her] care and control, education, health, and religion”.²⁰ “Custody embraces the sum of parental rights with respect to the rearing of a child, including [his or her] care. It includes . . . the right to direct his [or her] activities and make decisions regarding his [or her] care and control, education, health, and religion.”²¹

AB 665 would break parental custody over their minor child since a minor who decides to live in a residential shelter or with another person who happens to fall into one of the categories of “professional person” under California Health and Safety Code Section 124260 is no longer living with their parents, thus directly depriving parents of the companionship of their minor child.

AB 665 also breaks parental custody over a minor child as it deprives parents of their ability to make decisions regarding the healthcare of their child. AB 665 provides that a third party will ultimately make the decision, in their best personal judgment, as to whether the child should enter their facility or home, rather than the parent. Since these facilities are for mental healthcare, the law deprives parents of custody by taking away their right to make healthcare decisions for their minor children.

Why is this a problem?

According to the United States Supreme Court, the state cannot simply take away your children without proper due process.²² There is a legal presumption that parents will act in the best interests of their minor children (even if Senator Wiener personally disagrees with one’s parenting decisions).²³

But can’t the state simply statutorily declare you’re an unfit parent and take away your kids?

No. As the United States Supreme Court has held, before the state may take away custody of children from a parent, the parent must be afforded a hearing as a matter of constitutional due process.²⁴ Moreover, when the state moves to take away custody of a child from a parent, as a constitutional requirement, the state must prove the parent is unfit by clear and convincing evidence.²⁵

The United States Supreme Court case of Troxel v. Granville demonstrates why AB 665 is unconstitutional. In Troxel, paternal grandparents living in Washington State wanted to spend time visiting their grandchildren, the children of their deceased son.²⁶ While the mother of the two grandchildren did not want to stop the grandparents from visiting her children altogether, she sought to limit how much time her children spent with their paternal grandparents.²⁷

The paternal grandparents petitioned a court for visitation of their grandchildren under a Washington State law that provided “any person” could petition a superior court for visitation rights “at any time” and that the court could order visitation if the court decided “visitation may serve the best interest of the child.”²⁸ The superior court ultimately found it was in the best interests of the grandchildren have their paternal grandparents visit them and ordered visitation on a schedule midway between what the grandparents wanted and the mother wanted.²⁹

Affirming the Washington State Supreme Court, which had struck down the law as unconstitutional, the United States Supreme Court reaffirmed that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”³⁰ The United States Supreme Court held that the Washington State statute “unconstitutionally infringes on that fundamental parental right.”³¹

Why?

As the Court explained:

“The Washington nonparental visitation statute is breathtakingly broad. According to the statute’s text, ‘any person may petition the court for visitation rights at any time,’ and the court may grant such visitation rights whenever ‘visitation may serve the best interest of the child.’ That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. [The law] contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child's best interests. The Washington Supreme Court had the opportunity to give [the law] a narrower reading, but it declined to do so.”³²

In Troxel, the superior court had decided visitation would be better for the children, not on any specific factors that made the mother unit as a parent, but instead did so solely on the basis that the judge felt it would be a good parenting decision.³³ By doing that, the superior court ignored the presumption that a fit parent acts in the best interest of their children and violated the mother’s constitutional rights.³⁴

While it may have been better for the mother to foster a good relationship between her children and their grandparents, the Court rejected the concept that a court could enforce good family relations.³⁵ Although the opinion was fractured, all Justices agreed on the basic fundamental premise of constitutionally protected parental rights.³⁶ Troxel holds, as a matter of constitutional law, that parents are the ultimate deciders of who gets to spend time with their minor children, not the state.

AB 665 lacks even a minimum of the protection that failed to satisfy the Supreme Court in Troxel. It gives random third parties, unrelated to the child, the ability to take custody of children over their custodial parents based upon their own personal reasons without any court review of those reasons. Parents do not even have to be notified by this stranger if they take custody of their child, just a “best effort” at notification. That is unless the third party stranger decides in their best personal judgment that they do not need to notify the parents at all.

The practical reality of Troxel is that if grandma and grandpa want to have their grandkid over for a sleepover, it is ultimately up to the parents of the grandchild to approve. If the parents don’t want their child to have a relationship with their grandparents, that is a decision left to the discretion of the parent. As Troxel holds, as a matter of constitutional law, that parents are the ultimate deciders of who gets to spend time with their minor children, not the state.

AB 665 presents an even less compelling interest served in restricting parental rights than those offered in Troxel. It’s worth asking:

• Why would minor children not have the right to spend the night at grandma and grandpa’s without parental permission but would have the right to decide they want to live in a different residence with a third party stranger?

• Why would the state have any more interest in allowing a “psychology trainee” or a “registered psychological assistant” or a “credentialed school psychologist” to have access to your children than allowing your own flesh and blood relatives who may have a strong pre-existing relationship with your children to have access to your children?

• Why would the state have a stronger interest in allowing a random group home manager unilaterally outside the purview of a court decide that your child can move into their group home than allowing grandparents to petition a court for visitation rights?

• Why would a random third party have more legal authority to decide to abrogate your parental rights than a family court judge?

Some might argue that AB 665 is permissible because children are often in need of rescuing from bad parents who abuse them. However, there are already laws and procedures to address taking away custody from bad parents. Accusations of abuse and neglect are those that need to be proven. Not simply accepted as absolute truth. That’s especially true when allegations are made by children upset with a parental decision or by third parties wishing to gain unencumbered access to minors.

There are bad parents who do need to have custody of children taken away for the safety of those children. But as the United States Supreme Court has held, the state cannot take away parenting decisions from all parents simply because some parents are unfit.³⁷ AB 665 takes away parenting decisions from all parents.

Some might argue the state is justified in passing AB 665 because mental health therapy is an extremely good thing and can have a very positive benefit on children who take advantage of it. However, one can make the same argument about grandparents being involved in their grandchildren’s lives. As a matter of constitutional law, it is still ultimately up to the parents to make the decision of who is allowed to associate with their minor children, not the government.³⁸

Finally, some may argue AB 665 is constitutionally justified because under the California Constitution, minors have a fundamental constitutional right to an abortion and to access contraception without parental consent.³⁹ However, this argument fails for a very simple reason. There is no constitutional right for a minor child to live in a group home or with a third party if a minor dislikes their parents.

The issues contemplated are also far different in the case of abortion.

A pregnant minor faces the same weighty issues in deciding whether to carry her pregnancy to term that a pregnant adult does.⁴⁰ There are lifelong consequences that will result for a minor who is denied access to safe and legal abortion.⁴¹ A pregnant minor who cannot obtain a safe and legal abortion is likely to attempt self-help that could result in injury, lifelong sterilization, or even death.⁴² She could even be subjected to violence from others as a result of inability to obtain an abortion.⁴³

One might argue that not being able to live in a group home or even get therapy as a minor could have lifelong negative consequence for that minor just like the inability to obtain an abortion does. However, whether therapy is beneficial for a patient is a purely subjective judgment. The patient, the doctor, the patient’s friends, and the patient’s family could all reach different subjective conclusions as to whether mental health therapy helped a minor.

However, determining whether one is pregnant is not based upon a subjective personal opinion. Whether one is pregnant is not based upon a constellation of personal feelings. Instead, one is objectively either pregnant or not pregnant. The compelling interests present in protecting minor women, from the consequences of denying safe and legal abortion are not the same as the interests protected in AB 665.

Our constitutional case law regarding parenting recognizes something rather profound. There is no such thing as a perfect parent.

Even the best parents can get things wrong when it comes to raising their children. Parents can make bad decisions for their children, unwittingly harming their children, even though they are genuinely acting out of the best interests of their children. And they can do so even though it’s undisputed that they deeply love their children. It is doubtful that any parent, no matter how good or how bad, has not made such a choice.

However, in a free society, individuals will differ widely on what constitutes good parenting. And reasonable minds will each different conclusions on how to properly parent, depending upon the situation. Parents will be informed by their own life experiences, including their experience of having once been a child themselves. Whether those decisions prove to be the best ones possible is typically a matter of subjective interpretation, part of any complex family dynamic.

In our system of law, the Constitution protects the individual decision making of parents. It is not for the state to substitute its judgment for otherwise fit parents.

As it is written, AB 665 would violate the Fourteenth Amendment Due Process Clause as well as Section 1 and Section 7 of the California Constitution.

1. 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.

2. Cal. Const. Art. I, § 1(“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”); Cal. Const. Art. I, § 7(a)(“A person may not be deprived of life, liberty, or property without due process of law”).

3. Proposed Cal. Fam. Code § 6924(b)(emphasis added).

4. Proposed Cal. Fam. Code § 6924(a)(3)(A)(emphasis added).

5. Proposed Cal. Fam. Code § 6924(a)(3)(B)(emphasis added).

6. Cal. Health & Safety. Code § 124260(b)(2).

7. Proposed Cal. Fam. Code § 6924(a)(1)(emphasis added).

8. Proposed Cal. Fam. Code § 6924(c)(emphasis added).

9. Proposed Cal. Fam. Code § 6924(d)(emphasis added).

10. Proposed Cal. Fam. Code § 6924(d)(emphasis added).

11. Proposed Cal. Fam. Code § 6924(e).

12. Proposed Cal. Fam. Code § 6924(f).