dissenting.
I share with my colleagues the sympathy and concern for the circumstances of the parents of P.M. which may underlie their decision in this case. But our sympathy and concern for the parents cannot obscure the facts that Judge Aldisert in his separate opinion has attempted to expand for the first time the parents’ constitutional right to direct their children’s upbringing to parents of children in state custody and that both Judge Aldisert and Judge Rosenn base their decision on assumptions about the proceedings before the Hearing Master and the district court which are unsupported in the record. The order of this court now may require that the district court return a child to Pennhurst over the finding that his transfer to a community living arrangement was more beneficial to his interests than residence at Pennhurst. This decision may eviscerate the holdings of our two in banc decisions affirming the transfer of Pennhurst residents, including children, to community living arrangements where their rights to habilitation can be maximized.
This ongoing litigation began with challenges to the conditions existing in Pennhurst State School and Hospital, a Pennsylvania state institution for the mentally retarded. As the Supreme Court noted, the findings of fact of the district court are undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded. Indeed, the [district] court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 7, 101 S.Ct. 1531, 1534, 67 L.Ed.2d 694 (1981) (footnote omitted). The history of the litigation has been briefly sketched in Judge Aldisert’s opinion. The district court originally ordered that Pennhurst residents be transferred to community living arrangements. On appeal, we affirmed except for those residents who “because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution and thus will be harmed by such a change.” Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 114 (3d Cir.1979) (in banc). On remand from the Supreme Court we again affirmed the district court order except as modified in accordance with our earlier opinion. 673 F.2d 647, 656, 661 (3d Cir.1982) (in banc). To effectuate the individual consideration required by our orders, we directed that an individual determination be made for each Pennhurst patient. The procedure established by the district court for individual determinations has been before this court on a number of occasions during different phases of this litigation. It entails a number of steps.
A Planning and Assessment Team, established by the county case manager to develop the individual habilitation plan (IHP), typically includes state and county professionals, the case manager for the individual patient, others directly involved with the *716patient, and, as in this ease, the parents or, in other instances, the guardian or a certified advocate. The Deputy Secretary for Mental Retardation (or designee) attempts to resolve team disagreement through working with the team. The Special Master under the court’s order must review each IHP “to ensure that it provides, in the least restrictive setting, such minimally adequate habilitation as will afford a reasonable opportunity for each individual to acquire and maintain such life skills as are necessary to enable him or her to cope as effectively as his or her capacities permit.” App. at 24a. Under the general procedure, if the IHP is approved by the Special Master, the transfer proceeds. If there is objection by interested persons, including the parents, a separately appointed Hearing Master conducts a hearing “to determine whether the living arrangements and services being provided the resident at Pennhurst are more beneficial to the resident’s habilitation than the living arrangements and services which have been made ready in the community in accordance with the IHP.” App. at 25a.
All of these procedures were followed in P.M.’s case. As set forth more fully in Part II of this dissent, P.M.’s parents participated throughout in the process. The Special Master approved the individual habilitation plan for P.M. which provided for transfer to a community living arrangement; the parents objected; and the Hearing Master, after conducting the requisite hearing, concluded that transfer to the CLA would be more beneficial for P.M.’s habilitation. Exceptions to the Master’s report were filed and the district court, after a hearing at which P.M.’s parents introduced no new evidence, adopted the Master’s finding that the CLA would be “more beneficial” to P.M.
I agree with Judge Aldisert that this finding was not clearly erroneous. Judge Aldisert’s typescript op. at 12. It is unclear to me whether Judge Rosenn is also in accord on this issue. In any event, Judge Aldisert and I begin at the same starting point, the finding that transfer to the CLA would be “more beneficial” to P.M. than continued institutionalization, and it is on this basis that our legal analysis and review must proceed.
I.
The Parents' Asserted Constitutional Right
I agree with Judge Aldisert that the cases have established a parental right, grounded in constitutional notions of privacy, to direct the upbringing and care of their children. That right provides the basis on which parents can resist the state’s efforts to intrude upon parental decisions made with regard to children under their care. Thus, for example, the state cannot compel education of a child in a public, rather than a private, school, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); cannot preclude children from being taught in a foreign language, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); and cannot require children to attend high school when that conflicts with the parents’ sincere religious belief, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). However, the parental right upon which these holdings were based was recognized only in the context of the integrity and autonomy of the family unit.
This case is distinguishable because the parents of P.M. have voluntarily relinquished his custody to the state. The government has not interfered in a decision about the rearing of a child in the family unit nor has it removed the child from parental custody. Compare Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). P.M.’s parents are free to regain custody over him. There may be practical limitations which discourage such a course, but there is no legal impediment.
No case has extended what Judge Aldisert refers to as the parents’ “substantial constitutional right ... to direct and control the upbringing and development of *717their minor children” to parents of a child in state custody. Since Judge Aldisert speaks only for himself on this issue, it is not necessary to discuss the analytic and practical problems entailed in such an extension, such as whether and how it would be applied to children in involuntary custody.
On the other hand, I agree with my colleagues that the parents’ interest in their child does not stop at the gates of a state institution. In many, if not most, instances the parental interest will be identical with that of the interest of their institutionalized child and the right which they seek to protect will be that of their child, such as the right of personal security. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In those cases the traditional constitutional balancing referred to by Judge Aldisert between the individual’s right and the government’s interest must be undertaken. However, as the Supreme Court has recognized, there are instances when the parents’ interests and the child’s interests may not coincide. See Parham v. J.R., 442 U.S. 584, 602-04, 99 S.Ct. 2493, 2504-05, 61 L.Ed.2d 101 (1979); Wisconsin v. Yoder, 406 U.S. at 230-32, 92 S.Ct. at 1540-41. Indeed, there are instances in which those interests collide. In those circumstances, the parents cannot rely on cases grounding a parental right on the family structure, because, as noted in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788 (1976), that structure will have already been fractured. Therefore, it is inappropriate to balance only the parents’ interest against the significance of the governmental interest, as Judge Aldisert suggests. The parents’ interest cannot override the child’s separate constitutional right.
In Danforth, the Court held that a child’s abortion decision could not be overridden by her parents on the precedent of cases affirming parental authority or control. Instead the Court held the parents could not exercise an absolute veto over the child’s abortion decision because the child’s liberty interest was paramount. Similarly, in Par-ham v. J.R., supra, the Court recognized that “parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized.” 442 U.S. at 604, 99 S.Ct. at 2505. The Court held “that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a ‘neutral factfinder’ to determine whether the statutory requirements for admission are satisfied.” Id. at 606, 99 S.Ct. at 2506. The parents could be heard but did not have the final decisionmaking authority when the child’s liberty interest was at stake. The analysis in Parham, which involved mentally ill children, was made applicable to mentally retarded children in Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 646, 99 S.Ct. 2523, 2526, 61 L.Ed.2d 142 (1979).
Because we start with the premise that the transfer to the CLA will be “more beneficial” to P.M. than his continued residence at Pennhurst, and the parents nonetheless challenge that transfer, this case involves a collision between the parents’ interest and the child’s right, here the child’s acknowledged “substantial liberty interest in not being confined unnecessarily for medical treatment.” Parham, 442 U.S. at 600, 99 S.Ct. at 2503. Thus this case must be governed by the precedent of the most closely analogous cases, Danforth, where the Court rejected an absolute parental veto, and Par-ham, where the Court did not rely on the asserted prerogative of the parents but reposed its confidence in the neutral professional medical decisionmakers.
In summary, I believe the parental constitutional right on which Judge Aldisert relies cannot govern our decision in this case for two reasons. First, that parental constitutional right was enunciated in cases which involved a routine child-rearing decision made within the context of an ongoing family relationship. Here, as Justice Brennan noted in Parham, “a break in family autonomy has actually resulted in the parents’ decision to surrender custody of their child to a state mental institution.” 442 *718U.S. at 631, 99 S.Ct. at 2518 (concurring in part and dissenting in part). Second, as in Danforth and Parham, we are concerned with the child’s separate constitutional right, and we cannot necessarily rely on the parental authority to vindicate the child’s independent interests. Thus when a child is in state custody the parents must be given a full and fair opportunity to show that their interest in the decision at issue is congruent with the child’s interest and right. If so, then the parents are in fact advancing the child’s right in challenging the decision. If, however, the child’s right is shown to be incongruent with the parents’ position, then it is the child’s right, not the parents’, which must be considered. The parents may again be given an opportunity to be heard regarding the effect of the proposed action on the child’s right, but it would be anomalous to engage in an analysis in terms of the parents’ interest, when it is the child’s interest that will be adversely affected.
II.
P.M.’s Parents' Involvement in the Transfer Decision
Throughout the proceedings directed by the district court relating to transfer of Pennhurst patients to community living arrangements, particular care has been exercised to ensure participation by parents of children resident at Pennhurst in the transfer decision. Although Judge Aldisert characterizes the protection afforded to P.M.’s'parents as only “procedural”, Judge Aldisert’s at 710-711, and Judge Rosenn also suggests that the parents’ wishes were given inadequate weight, Judge Rosenn’s at 715, in fact the record show that P.M.’s parents were accorded not only the procedural rights of notice and the opportunity to be heard, but their concerns were addressed and their suggestions were accommodated and revisions were made.
The district court’s order of April 24, 1980, expressly provides for parental participation:
No school-age resident of Pennhurst shall be returned to the community unless and until an appropriate community living arrangement has been established in accordance with that resident’s individual habilitation plan which has been developed with the opportunity for full participation by the resident’s parents or guardians and other advocates for the resident, and unless and until appropriate educational facilities are available in accordance with that resident’s individual educational plan, which has been developed with the opportunity for full participation by the resident’s parents or guardians and other advocates for the resident.
App. at 21a-22a. In accordance with this order, a Planning and Assessment Team was convened and developed a plan proposing P.M.’s transfer to a community living arrangement. Thereafter, P.M. was taken to the suggested CLA for more than 20 daytime and overnight visits. App. at 44a, 237a. On May 11, 1981, there was a meeting regarding P.M.’s habilitation plan attended by P.M.’s parents and most, if not all, of the professionals with responsibility for his case. In addition to the parents, the following were present: Pam Scoggins, his case manager from the Chester County MR Case Management Unit; Sue Crossman, his teacher for the preceding six years from the Liberty Forge School, and Camen Bowden and Ruth Copenhafer, teacher aids from the Liberty Forge School; Melissa Perot, occupational therapist from Chester County; Bill Park, Project Director from Community Homes and Debbie Maggio from the same agency; and Elyse Defoor, speech therapist, Nancy Kulp, licensed practical nurse, Debbie Brodbeck, first shift aid, Bob Doud, Program Manager, Lenko Kovach, psychologist, Janice Allen, case worker, Jean Bauman, physical therapy aid, and Kathy Trotta, occupational therapist, all from Pennhurst. App. at 234a-36a.
The CLA proposed in the plan is a four bedroom ranch-style home in Malvern occupied by a live-in couple and two other retarded boys aged 21 and 22. The house is in a quiet residential area located on a cul de sac. The plan provided for 1:1 staff supervision for P.M. and awake night staff, *719at least initially. Safety adaptations such as a fence, safety gates, and a grab bar in the bathroom were made. The plan contained a program of self-help skill training, socialization, pre-language communication, occupational and physical therapy and recreational activity. P.M. was to continue at the school which he had attended for six years. Without reviewing all of the details, it is important to note that the plan and portions thereof were submitted to independent professional judgment and evaluation throughout. Thus, for example, a physical therapy consultant of the Bureau of Professional Services of the Commonwealth of Pennsylvania made a consultation visit to Pennhurst for the purpose of evaluating the physical therapy program developed by the staff for P.M. In his report to the Superintendent of Pennhurst, he agreed that under the arrangements made, P.M. “could function in a community living facility and be given the opportunity to develop to a higher level.” He continued, “The decision of whether or not institutional care is more effective than a community living arrangement is difficult to answer; however, the progress that has been made thus far and the continuation of a closely supervised program leads me to believe that he will benefit in a home-like atmosphere.” App. at 274a.
The parents’ objections to the proposed plan were mediated by Pennhurst Superintendent Kopchick. This process allayed some of their concerns; for example, controversy with respect to the proposed occupational and physical therapy programs was satisfactorily settled. App. at 118a. P.M.’s parents do not argue here that the CLA is unsafe.
The plan was reviewed by the Office of the Special Master established by the district court for that purpose, which found “that the community services prescribed in the Plan will be more beneficial for the habilitation of [P.M.] than the services provided at Pennhurst.” App. at 214a. P.M.’s parents were notified of their right to demand a hearing for the purpose of determining whether the living arrangements and services were more beneficial to P.M.’s habilitation than the living arrangements and services being provided at Pennhurst. App. at 214a. P.M.’s parents requested a hearing, which was held before the Hearing Master. Again the parents had the opportunity to present evidence and arguments, to require the attendance of witnesses, if necessary, and to ask questions of other witnesses. The Master in his Report specifically addressed each of the comments of P.M.’s parents and their two witnesses, and concluded,
I am convinced beyond any doubt that the program the County is proposing for P.M. will be more beneficial for his habilitation than remaining at Pennhurst would be — because it is designed around his potential rather than his limitations, and because it has been so carefully and thoughtfully structured to let him grow and explore as far as his abilities will take him.
App. at 298a.
The parents excepted to the Master’s Report. Although they made some general challenges, they clearly, through their counsel, stated as the essence of their position “that the Court should not consider the basis of the parents’ nonconsent.” App. at 326a. Counsel stated he was not arguing that the CLA was dangerous or that the state or county have not provided the best possible living arrangements under the circumstances. App. at 328a. Instead, he articulated the parents’ position as their right to make the decision regarding transfer “regardless of whether or not the parents’ decision is right or wrong.” App. at 330a.
It is evident that the parents were provided with every incident of the parental right or interest to which they were entitled. But once there is a determination made that the child’s interest was best served by his transfer to the community living arrangement, it is his right that takes precedence. The determination that transfer was beneficial to P.M. was made by a neutral factfinder as required in Parham. The professional judgment in favor of transfer was made by the numerous profes*720sionals, state and county, who participated in the preparation and approval of the individual habilitation plan.1 The statements of the state and county witnesses that they would defer to the parents’ wishes represented a policy position. It must be distinguished from the professional judgment by the state and county’s social and medical personnel, all of whom supported the transfer as beneficial to P.M. The Chester County professional with the most direct involvement with P.M., Ms. Scoggins, his case manager, testified “that the extra stimulation, attention and exposure to different experiences provided in this community placement, will be enriching and beneficial to [P.M.’s] growth and development.” App. at 51a-52a.
In addition to the neutral factfinder’s decision as required by Parham, the parents were provided with a second and third tier review by the Hearing Master and the district court, which afforded them the opportunity to show that the neutral factfinder was erroneous in finding that transfer was to P.M.’s interest. The Hearing Master correctly characterized the testimony of the two experts for the parents as “highly abstract and theoretical”, which “sought to reargue global issues, such as the need for institutional programs and the validity of various ‘normalization’ theories.” App. at 296a. Since neither expert had observed P.M. in Pennhurst nor viewed the Malvern community living facility, there was ample basis for the Hearing Master to come to a different conclusion which accorded with the recommendation of those professionals who had worked more closely with P.M. Judge Aldisert errs when he attributes the Master’s conclusion to the presumption imposed by this court in favor of deinstitutionalization, since the Master stated in his report that “it is not necessary to resort to the presumption in this matter, since the County has done a truly excellent job in planning for P.M.’s community placement (in part because of the parents’ active and constructive participation) and since P.M.’s program at Pennhurst, though it has helped him in many ways, seems to have reached its limit and indeed has begun to recede.” App. at 289a-90a. Even if the Master had relied upon the presumption in favor of deinstitutionalization, it was one mandated by in banc decisions of this court, which a panel is not free to disregard.
Although both Judge Aldisert and Judge Rosenn disclaim giving the parents an absolute veto over the transfer decision, in effect that is precisely what P.M.’s parents have requested and exactly what this decision gives them. P.M.’s parents have made two principal arguments before us — that no liberty interest of P.M. is implicated in the transfer decision, and that “the decision of the parents should have controlled.” P.M. has an unchallenged liberty interest in not being confined unnecessarily, and as we found in our in banc decisions also has a right to habilitation. It follows that the decision of the parents cannot control as a matter of constitutional law. Judge Rosenn asks “who is it then that insists on the transfer and by what right.” Judge Rosenn’s at 714 n. 4. Since P.M. is a severely retarded 12 year old child who cannot speak for himself, it is the professionals to whom he has been entrusted, i.e. the Par-ham “neutral factfinder”, who decided in favor of the transfer. The district court was meticulous in following the Supreme Court’s decision in Parham which required a neutral factfinder to speak for the child’s interest. I can find no basis to reverse.
Finally, at a minimum, the district court should have the opportunity to consider the effect of possible changed circumstances. We have been told there are only two remaining children of school age currently at Pennhurst, Brief for Appellee PARC, et al. at 8 n. 1, P.M. has now been in the community living arrangement for more than a year, and we know absolutely nothing about P.M.’s adaptation and progress in the intervening period. Since the panel disposition is to remand, and Judge Rosenn agrees with *721me that changed circumstances may be relevant to the district court’s ultimate decision, I assume that this issue is open for consideration by the district court.
. See Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 648-50, 99 S.Ct. 2523, 2527-28, 61 L.Ed.2d 142 (1979) (upheld professional staff team approach to decision-making as comporting with Parham due process requirements).