High court choosing cases for new term Family issues figure significantly

October 20, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- Stepping gingerly into family conflict, an arena it usually tries to avoid, the Supreme Court agreed yesterday to spell out the role that parents may play in having retarded children committed to a state home.

The court refused, however, to become a constitutional referee over the rights of grandparents to have visits with grandchildren, when the parents resist.

Those two actions came as the court continued to pick among new cases to shape its new term. The justices then began a recess, expecting to take no other action until the day before Election Day.

Among the items left untouched until at least that day is a major pending test case on states' power to criminalize abortion. If it acts on that case Nov. 2, its action may come too late to have any significant effect on abortion as a presidential campaign issue.

The court's contrasting orders yesterday on two disputes over family relations showed that the justices retain only a partial interest in monitoring the role of government in that field. By coincidence, the two cases before it yesterday were from Kentucky.

In the case involving commitment of mentally retarded persons, the court will be focusing on whether parents and legal guardians of retarded individuals may be given the final authority to consent to or arrange commitment.

The 6th U.S. Circuit Court of Appeals ruled that it is unconstitutional to assign any role to parents or guardians when a state is considering an involuntary commitment of a retarded person.

Since there is no such role in the commitment of persons who are mentally ill, it would be discrimination to assign such a role when the individual involved is retarded, that court said.

The Circuit Court said that the Constitution requires that the procedural rights of the mentally ill and of the mentally retarded must be equal. State officials, in taking the issue to the Supreme Court, argued that the two conditions of mental health are much different, and thus states should be free to have differing procedures.

A final decision on that issue is expected next year.

In the other Kentucky case, the court refused to hear a constitutional challenge to a state law -- parallel to laws across the nation -- that assures grandparents some legal right of visitation to grandchildren.

A state court awarded a Bowie County, Ky., man a right to visit his 5-year-old granddaughter for three hours on each of two days a week -- a right that the child's parents oppose because they have been feuding with the grandfather. The state judge said such visits would be in the child's "best interests."

The parents' appeal to the Supreme Court argued, unsuccessfully, that parents should be left with the clear-cut responsibility to decide whether their children should spend any time with grandparents.

The justices, as is their custom, offered no explanation for turning aside the parents' plea.

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