LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
(212) 995-8585

A LEGAL SKETCH OF THE ISSUES OF PARENTAL CONSENT AND RELATED TORT LIABILITY IN THE CONTEXT OF YOUTH SERVICE PROVIDERS WORKING WITH LESBIAN, GAY, BISEXUAL, AND TRANSGENDERED YOUTH

David Buckel
Staff Attorney
September 14, 1995

This memorandum is intended to provide a starting point for a legal inquiry. The legal inquiry would be into the issues of parental consent and related tort liability for those individuals and groups who work with lesbian, gay, bisexual, and transgendered youth. The applicable legal framework is extremely complicated, and perhaps that is to be expected because the framework arises from the need to protect some of the most vulnerable members of our society. In addition, the legal framework is, in large part, merely a collection of fifty different frameworks tied to fifty different states. Given that the inquiry is mostly specific to the individual states, the most that could be accomplished in a memorandum of this scope is to introduce the key concepts and provide the key sources of law that will hopefully allow the reader to extend the inquiry to fit her particular circumstances. Those seeking professional legal answers to the questions concerning their circumstances should consult an attorney knowledgeable about their state's law. Nothing in this memorandum should be taken as legal advice for individual circumstances.

The first section will address the requirements for parental consent. The second section will address the potential for tort liability in the absence of parental consent.

I. PARENTAL CONSENT

The need for parental consent generally turns on three principal questions: who is the youth, who is the youth service provider, and what is the service provided. For example, whether the youth is legally defined as a minor or as a runaway or as an abused child will produce different answers to questions about parental consent. Whether the youth service provider is a licensed professional and/or receives funding from a state will produce different answers. Lastly, whether the service provided is health-related, particularly if related to mental health, or includes sex education, will produce different answers. Therefore, any attorney examining the needs of a youth service provider will have to consider all of the attributes of the youths potentially to be served, of the provider, and of the service. Below are sections for each of the major considerations.

A. State Funding

If a youth service provider receives state or federal funding, then the provider may be subject to limitations similar to those imposed on state and federal governments themselves. If so, the question for a representative of providers is the balance between the parents' right to direct the upbringing of their children and the children's right to privacy. Both the United States Supreme Court, interpreting the federal constitution, and the individual state courts, interpreting their own constitutions, have extensively engaged in the balancing of the rights of parents and children. Two recent state cases, one in Massachusetts and one in New York, are helpful in that the courts in both cases gather the relevant federal precedent and state precedent and apply it to the issue of whether schools can distribute condoms on a voluntary basis, without parental consent, to students. Alfonso v. Fernandez, 606 N.Y.S.2d 259 (A.D.2 Dept. 1993)(voluntary condom distribution program is not valid); Curtis v. Falmouth, 652 N.E.2d 580 (Mass. 1995) (voluntary condom distribution program is valid). If state or federal funding is implicated, consultation of these two cases would be helpful for the gathered precedent.

B. Professional Codes

If the youth service provider is a professional, or an entity that employs professionals, then ethical codes and licensing statutes apply to the disclosure of information to parents. Four of the professions that are most likely to be involved with youths all have ethical codes applicable to such work. See Gerard F. Glynn, Multidisciplinary Representation of Children: Conflicts Over Disclosures of Client Communications, 27 J. Marshall L. Rev. 617, 621 (1994)("Multidisciplinary Representation"). Those four professional groups are lawyers, social workers, psychologists, and medical practitioners (which include psychiatrists). Id. The general rule for all four professions is to abide by the duty to preserve the privacy of the client, although there are exceptions, often dictated by statute. Id. at 631. Statutory exceptions will be discussed below. As for the professional ethical obligations, the licensed professional in a youth service entity is the proper source of knowledge on such obligations, particularly given that there are state-by-state variations.

C. State Statutes

State statutes provide the bulk of considerations relating to parental consent. A representative of a youth service provider would of course need to consult the decisional law to determine whether the courts have modified the statutes, by interpretations and/or invalidations. See, e.g., Alfonso v. Fernandez, 606 N.Y.S.2d 259 (A.D.2 Dept. 1993)(voluntary condom distribution program in schools invalid under the state's "health service" statute).

If the services to be provided to a youth fall under the heading of health care, multiple statutes apply in each state.
For an excellent resource in this area, consult State Minor Consent Statutes: a Summary, (April 1995)("Summary"), prepared by the National Center For Youth Law, 114 Sansome Street, Suite 900, San Francisco, CA, 94104, (415) 543-3307. In the Summary, the editors survey each state's statutory provisions applicable to minor consent. The survey begins with concepts that define minors, such as "emancipation," "minor living apart," "minor parent," "married minor," and "pregnant minor." The survey then covers all of the areas of health care, including emergency care, general medical care, family planning/contraceptive care, pregnancy related care, abortion, sexually transmitted diseases, HIV/AIDS, drug/alcohol treatment, sexual assault, outpatient and inpatient mental health services. Here, perhaps an area of high interest is that of outpatient mental health services, and below is a sampling from the Summary of the varying statutory provisions for parental consent, which of course should be directly consulted by an attorney for any specific application:

Colorado--"Notwithstanding any other provision of law, a minor who is 15 years or older may consent to receive mental health services. The professional person rendering mental health services to a minor may, with or without the minor's consent, advise the parent or legal guardian of the services given or needed." Summary at 4-HO-28, citing CO St. 27-10-103(2).1

District of Columbia--"A minor of any age may consent to health services which he or she requests for the prevention, diagnosis, or treatment of a mental or emotional condition." Summary at 4-HO-38, citing 22 DCMR 600.7.
Illinois--"Any minor 12 years or older may request and receive counseling services or psychotherapy on an outpatient basis. The consent of parent, guardian, or person in loco parentis is not required. The minor's parent/guardian shall not be informed of such treatment without the minor's consent unless the facility director believes such disclosure is necessary. If the parent/guardian is to be notified, the facility director must inform the minor. These services for a minor under age 17 shall be limited to 5 sessions, with a session not lasting more than 45 minutes." Summary at 4-HO-56, citing Il. St. Ch. 405 5/3-501(a).

Kentucky--"Any physician may provide outpatient mental health counseling to any child 16 years or older upon the request of the minor without the consent of parent(s) or guardian." Summary at 4-HO-69, citing KY St. 214.185(2) and (6).
If the minor is a runaway, then state statutes will likely govern the issue of disclosure to parents.2 For an excellent resource in this area, consult Runaway and Homeless Youth: A Survey of State Law, (1994)("Survey"), prepared by the American Bar Association's Center on Children and the Law, 1800 M. Street, N.W., Washington, D.C., 20036, (202) 331-2250. The Survey demonstrates that the statutory obligations turn on many factors, including the definition of a runaway (age, circumstances) and often whether the youth service provider receives funding from the state. The definition of the runaway may depend not only upon the statutory terms of the state where the minor is located, but also upon whether the minor has crossed state lines. "For purposes of defining a runaway, one must look to the law of the state from which the minor ran." Rights and Responsibilities of Young People in New York, A Legal Guide for Human Service Providers, p. 19-22 (1990), prepared by the Law Youth and Citizenship Program of the New York State Bar Association, citing the Interstate Compact on Juveniles, Unconsolidated Laws 1801 et.seq.. and citing the applicable state statutes set forth in the margin below.3

If the various factors combine to implicate the applicable statute, each state has a different rule on notice to parents of runaways, as evidenced by the sampling below:

Alaska--"Unless compelling circumstances exist which justify withholding notice, a 'good faith' effort must be made to notify the minor's custodian as soon as possible, but in any case, within 48 hours"; and

Florida--"Applicable licensure standards clarify that notification is to take place immediately unless parental abuse or neglect is alleged"; and

Maine--"[T]he youth's parents must be notified of his whereabouts as soon as possible"; and

New York--"Unless compelling reasons argue against notification, program staff should notify parents within 24 hours (but in no case more than 72 hours) of the youth's physical and emotional condition and the circumstances surrounding his admission into the program."
Survey at Appendix A.4

II. TORT LIABILITY

A. For All Youth Service Providers

Generally speaking, tort liability concerns civil--not criminal--liability for injuries other than injuries caused by breach of contract. Lack of parental consent may also raise concerns by youth service providers with regard to potential tort liability. With the exception of the unique character of services to lesbian, gay, bisexual, and transgendered youth, such concerns are identical to the concerns of youth service providers working with any youth population, gay or non-gay. For example, there are universal concerns regarding the genre of "slip-and-fall" and "transport van" cases that are conventionally addressed by insurance.

A federal bill called the "Volunteer Protection Act" has been pending for several years, and would seek to limit the liability of groups, particularly youth service provider groups (including non-profits). The Act would seek to limit liability of youth service providers in part by providing states an incentive to pass their own protective statutes. Joseph H. King, Jr., Exculpatory Agreements for Volunteers in Youth Activities--The Alternative to "Nerf" Tiddlywinks, 53 Ohio St. L.J. 683, 702 (1992). Many states have already legislated such protections, without the federal bill yet being in place. Id., at 704 n. 104, citing ARK. CODE ANN. 16-6-103(1) (Michie Supp. 1991); 1992 Colo. Legis. Serv. H.B. 92-1047 (West) (to be codified at COLO. REV. STAT. 13-21-115.5) (with some exclusions); COLO. REV. STAT. 13-21-116(2)(a)(1987); DEL. CODE ANN. tit. 10, 8133(a)(1) (Supp. 1990); IOWA CODE ANN. 613.19 (West Supp. 1990); KY. REV. STAT. ANN. 411.200 (Michie/Bobbs-Merrill Supp. 1990); MD. CODE ANN. CTS. & JUD. PROC. 5-312(b), 5-314(a)(4) (1989); MONT. CODE ANN. 27-1-732(1) (1989); N.J. STAT. ANN. 2A:53A-7.1(b) (West Supp. 1991); N.C. GEN. STAT. 1-539.10(a) (Supp. 1991); OHIO REV. CODE ANN. 2305.38 (Anderson 1991)). For the purpose of determining potential tort liability applicable to all youth providers, serving a gay or non-gay population with or without parental consent, an attorney's review of the applicable preceding statutes would be necessary, as well as a review individual state's tort law.

B. For L/G/B/T Youth Service Providers in Particular

Lack of parental consent may hold particular concern for providers who work with lesbian, gay, bisexual, and transgendered youth, because the counseling of such youth, specifically with regard to addressing the youth's sexuality in a supportive manner, may seem to have a higher likelihood of triggering a litigious response from homophobic parents. We have found no reported cases where a parent launched a tort lawsuit to attack such counseling. However, there is no doubt that the concern would remain despite the lack of reported cases, so it may be helpful to review briefly the general principles that apply to tort lawsuits, and then to review some reported cases that may be analogous to a lawsuit that a homophobic parent might entertain. It is worth keeping in mind that perhaps the most important element of a tort lawsuit is that there has in fact been harm to an individual. W. Page Keeton et al., Prosser and Keeton on the Law of Torts, 2 at 2 (5th ed. 1984). It seems that two of the tort lawsuits most likely to be contemplated by homophobic parents would be intentional infliction of mental distress or negligence. 5

For the tort of intentional infliction of mental distress, the general rule--which may vary from state to state--is that liability rests on "conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Id., 12 at 60. It is worth taking particular note of the requirement that the target of the lawsuit not only caused harm, but did so in a manner "especially calculated to cause" harm.

For the tort of negligence, the general rule--which may vary from state to state--is that liability rests upon four elements, all of which must be met:

  1. A duty or obligation to protect another from unreasonable risk; and
  2. A failure to observe that duty; and
  3. A causal connection between the failure and the alleged injury; and
  4. Actual loss or damage that resulted.
Id., 30 at 164-165. It is worth noting that where "negligence causes only mental disturbance, without accompanying physical injury, illness or other physical consequences . . . the great majority of courts still hold that in the ordinary case there can be no recovery." Id., 54 at 361.

Given that we found no reported cases in which a parent sued a youth service provider for counselling a lesbian, gay, bisexual, or transgendered youth, it is necessary to speculate as to the types of lawsuits that a homophobic parent may bring. One likely view that a homophobic parent could take of supportive counselling would be that it is a form of "brainwashing," perhaps for the purpose of "recruitment." Accordingly, we reviewed reported cases in which parents had commenced tort actions against cults and religious groups.

In California, a mother and her daughter sued the Krishna group on several grounds related to the daughter's involvement with the Krishnas, including intentional infliction of emotional distress upon the mother. George v. ISKCON of California, 4 Cal.Rptr. 2d 473 (Cal.App. 4 Dist. 1992). An appellate court upheld the finding of liability in the lower court, basing its holding on a long history of deceptions by the defendants. The Court observed that "[w]hile pretending to be ignorant but cooperative, the various leaders of the Krishna movement systematically planned and carried out ruse after deception in an effort to wear down the [parents] and put law enforcement officials off the track." Id., at 496. See also Molko v. Holy Spirit Ass'n, 252 Cal.Rptr. 122 (Cal. 1988), cert. denied, 490 U.S. 1084 (1989)(in an action against the Unification Church led by Reverend Moon, question of fact remained for the jury as to whether the church's alleged long pattern of deceptions and mind-control constituted outrageous conduct for the purpose of the claim for intentional infliction of emotional distress). These intentional tort cases turned in large part upon whether the defendant's conduct of systematic deception was "outrageous." A homophobic parent would have a difficult time equating supportive counselling with systematic deception. In addition, the homophobic parent would have to also show that the counsellor calculated to cause emotional distress, which seems difficult as well.

In another version of the "brainwashing" theme, some parents have sued the rock musician, Ozzy Osbourne, for allegedly causing the suicides of youths through lyrics that promoted suicide. McCollum v. CBS, Inc., 249 Cal.Rptr. 187 (Cal.App.2 Dist. 1988). The Court found that Ozzy Osbourne's First Amendment rights precluded tort liability. However, the Court went on to analyze the claims for tort liability in the alternative. Id. at 196. First, the Court addressed the asserted claim of negligence, and found that there was no duty owed to the youth because the youth's suicide was not a reasonably foreseeable risk of Ozzy Osbourne's music. Id. Second, the Court addressed the asserted claim of intentional infliction of harm, and found the claim invalid for lack of intent, reasoning as follows:

It is not sufficient simply to allege that defendants intentionally did a particular act. It must also be shown that such act was done with the intent to cause injury.
Id., at 197.

The above cases show the difficulties faced by homophobic parents who might seek to sue a supportive counsellor in a tort action. For the generic tort of negligence, the parent must show that harm in fact occurred and that the counsellor should have reasonably foreseen that the harm would arise from the counsellor's interactions with the youth. For the generic tort of intentional infliction of emotional distress, the parent must show not only outrageous conduct but that the counsellor intended to cause harm with the outrageous conduct.

The difficulties faced by homophobic parents may explain our inability to find any reported cases of such parents bringing tort lawsuits against youth service providers for counselling lesbian, gay, bisexual, and transgendered youth, which may provide some reassurance to providers. For fully adequate legal reassurance, providers should consult attorneys familiar with the tort law of the providers' individual states.

III. CONCLUSION

We hope this memorandum is a helpful starting point for youth service providers to seek the answers they need from attorneys familiar with the law of the providers' individual states. While there is no doubt that concern is appropriate in the area of parental consent, we believe that the memorandum demonstrates that there is also cause for some reassurance.

NOTES

1 The statute's provision allows a professional the discretion to disclose the services to the parent, which may conflict with the ethical obligations of the profession regarding the child's right of privacy. The potential conflict shows how no one source of law on parental consent can be assumed to answer questions about actions to be taken.

2. This memorandum covers civil obligations. Depending on the state, there may be criminal liability for harboring a runaway without notice to the parents. See, e.g., Ill.Ann.Stat. Ch. 720, para.5/10-6 (1993)("Any person, other than an agency or association providing crisis intervention services . . . or an operator of a youth emergency shelter . . . who, without knowledge of the minor's parent or guardian, knowingly gives shelter to a minor, other than a mature minor who has been emancipated under the Emancipation of Mature Minors Act . . . for more than 48 hours without the consent of the minor's parent or guardian, and without notifying the local law enforcement authorities of the minor's name and the fact that the minor is being provided shelter commits the offense of harboring a runaway . . . a Class A misdemeanor.").

3. Alabama, Ala. Code, 12-15-1(3); Alaska, Alaska Statutes, 47.10.010(a); Arizona, Ariz. Rev. Statutes Ann., 8-201(6); Arkansas Ark. Code of 1987 Ann., 9-27-303; California, Cal. Wel. & Inst. Code, 601; Colorado, Colo. Rev. Stat., 19-1-103(2); Connecticut, Conn. Gen. Stat. Ann., 46b-120; Delaware, Del. Code Ann., T.10, 901(3); Wash., D.C., D.C. Code Ann., 16-2301(3); Florida, Fla. Stat. Ann., 39.017; Georgia, Ga. Code Ann., 15-11-2(2); Hawaii, Hawaii Rev. Stat., 571-2; Idaho, Idaho Code, 16-1802(c); Illinois, Ill. Ann. Stat., C.37, 803-3; Indiana, Ind. Code Ann., 31-6-1-2; Iowa, Iowa Code Ann., 232.02(5); Kansas, Kan. Stat. Ann., 38-101; Louisiana, Code of Juvenile Procedure, Art 13(9); Maine, Me. Rev. Stat. Ann., T.15, 3003(14); Maryland, Md Cts. & Jud. Proc. Code Ann., 3-801(d); Massachusetts, Ma. Ann. Laws, C.ll9, 72; Michigan, Mich. Stat. Ann., 25:244(1); Minnesota, Minn. Stat. Ann., 260.015(20); Mississippi, Miss. Code Ann., 43-21-105(d); Missouri, Mo. Ann. Stat., 211.021(2); Montana, Mont. Code Ann., 41-5-103(11); Nebraska, Neb. Rev. Stat., 43-245(5); Nevada, Nev. Rev. Stat., 62.020(2); New Hampshire, N.H. Rev. Stat. Ann., 169-D:2(I); New Jersey, N.J. Stat. Ann., 2A:4A-22(a); New Mexico, N.M. Stat. Ann., 32-2A-3(a); New York, N Y. Fam Ct. Act, 718; North Carolina, N.C. Gen. Stat., 7A-517(28); North Dakota, N.D. Cent. Code, 27-20-02(1); Ohio, Ohio Rev. Code Ann., 2151.011(B)(1); Oklahoma, Okla. Stat. Ann., T.10, 1101(1); Oregon, Or. Rev. Stat., 419.476(1); Pennsylvania, Pa. Stat. Ann., T.42, 6302(1); Rhode Island, R.I. Gen. Laws, 14-1-3(C); South Carolina, S.C. Code Ann., 20-7-30(1); South Dakota, S.D. Codified Laws Ann., 26-8-1(3); Tennessee, Tenn. Code Ann., 37-1-102(4)(A); Texas, Tex. Fam. Code Ann., 51.02; Utah, Utah Code Ann., 78-3a-2(3); Vermont, Vt. Stat. Ann., T.33, 632(1); Virginia, Va. Code, 16.1-228(D); Washington, Was. Rev. Code Ann., 13.32A.030(2); West Virginia, W. Va. Code, 49-1-2; Wisconsin, Wis. Stat. Ann., 48.02(2); Wyoming, Wyo. stat., 8-1-102(a)(iii)(B); Puerto Rico, P.R. Laws Ann., T.34, 2203(n).

4. Given that child abuse is a common factor with runaways, it is also important to note that there are reporting obligations that arise with such cases, even though the disclosure is to the state rather than to parents. "All states now require reporting of suspected child abuse." Multidisciplinary Representation, 27 J. Marshall L. Rev. at 639 n. 78. The question of who must report such abuse varies with each state. See, e.g., N.Y. Social Services Law 413 (a long list of individuals are required to report abuse, including mental health professionals).

5. One novel tort claim that a homophobic parent might consider is a claim of "alienation of affections." However, most courts have rejected the existence of such a claim and the trend of rejection is expanding. Prosser and Keeton on the Law of Torts, 22 at 928. In addition, a majority of states have statutorily barred such claims. Id., at 930. See, e.g., Schuppin v. Unification Church, 435 F.Supp. 603 (D.Vt. 1977)(parent's tort claim based on alienation of affections between parent and child is dismissed because no such action exists in the state).

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Last updated 2/12/96 by Jean Richter, richter@eecs.Berkeley.EDU
David Buckel/Lambda Legal Defense