(dissenting) :
My colleagues in their text have quoted the applicable statute. As here pertinent, it clearly provides that a father or mother may be liable for the cost of maintenance of a mentally ill person only if the parent be “of sufficient ability” to meet that charge. The court ultimately must make a determination as to the extent of liability. The statute is explicit. If the father or mother shall fail to provide for maintenance of their mentally ill child, “the court shall issue to such person a citation to show cause why he should not be adjudged to pay a portion or all of the expenses of maintenance of such patient.”
The record here shows that the court on August 6, 1938 made its determination that the District of Columbia was to pay the expense of the maintenance and treatment of the son “until further order of this Court.” The court further determined and ordered that the patient’s father, Francis J. Clark, pay the sum of $30 monthly to the Board of Public Welfare “until further order of this Court.”
Throughout the lifetime of Francis J. Clark, the patient’s father, there was no further order of the court. Until the father’s death in 1958, he made payments in accordance with the court order and pursuant to the statute.
The record shows that until the instant proceeding there had been no determination by the court concerning the ability of the mother to pay any sum, either in whole or in part, toward the cost of maintenance and treatment of the mentally ill son.
This very proceeding was commenced on March 18, 1965. As the statute directs, a citation was issued to the mother, or her conservator, to show cause if any there be why the estate of Bertha K, Clark should not be adjudged to pay all or a portion of the unreimbursed amount theretofore expended by the District of Columbia for the care and maintenance of the patient. Thus, the judgment and order entered on May 26, 1965, for the first time, constituted a determination resulting in a judgment that the estate of the mother should be liable. Not until after hearing in the District Court had the statute been complied with. On*598ly then could it have been “brought home” 1 to her that she was to be charged with an obligation although previously “no claim had been asserted or indicated over a long period of time,”2 either against the deceased father or the surviving mother. The Beach case definitely settled that the means for determining a parent’s contribution are equitable in nature. This court there held that when the amount of contribution had been determined, the requirement for payment should be retroactive only to a time as of which the District authorities had taken such steps with respect to the parent as amounted to a demand for contribution. I believe it to be inequitable and not in accordance with the statute that Mrs. Clark’s estate should now, retroactively, be made liable for all deficiencies dating back to 1938.
The father had been under order to pay $30 per month continuously or until further order of the court. There had been no such further order. He paid $6,132.-60. After the father died December 8, 1958, the mother without having been adjudged liable, voluntarily kept up payments at the same rate under which the father had been making payments for some twenty years. She contributed $2,-221. Until the instant action the District had not initiated proceedings against her to ascertain if she possessed “sufficient ability” to make larger payments. In my view, compliance with statutory prerequisites should be required.
It appears that this lady is a patient in a nursing home with no prospect of discharge. The cost of her care and maintenance approximates $450 per month and may increase. .Obviously no one can predict the extent of her longevity. The District Court has very properly provided that execution of its judgment shall be withheld during the lifetime of the widowed mother.3 But that alone does not establish what is “equitable” within the holding of the Beach case which required that monthly payments commence only as of the date the statutory proceedings were instituted by the District.
The record shows that in 1965 the cost of the care of the son was $9.87 per day and continues to accrue at that rate.4 I think the District should have judgment at that rate from March 18, 1965 when the statutory citation to show cause was filed, and not for $36,051.35 related back over a 27-year period. Fair compliance with the requirements of the statute in the determination of ability to pay and that a parent is to be charged with any such obligation should be a prime prerequisite in a decision as to what is “equitable.”
I would remand for a redetermination of the amounts for which the mother equitably would now be made liable, computed from March 18, 1965. Against that sum, she would be given credit for the $2,221 she has already paid. Additionally she would be credited at the rate of $100 per month with such payments as she may have made since June 1, 1965.5
In argument it was represented that she has been receiving a Social Security allowance of $87 per month, which as-sertedly had been paid to and received by her expressly for the care of the mentally ill son. For how long a period the mother has been receiving such an allowance does not appear. Quite apart from the mother’s obligation as determined pursuant to the Beach case holding, swpra, it would seem that, equitably, the mother should be required to pay over to the District such disability benefits as accrued since the date of the father’s death, *599on account of the disabled “child” as defined in the Social Security Act. Such amounts run to the disabled person as to one “entitled” thereto as disability insurance benefits.6 It reasonably may be assumed that the Secretary determined that the interests of the incompetent would be served by payments “for his use and benefit.” 7 While, strictly speaking, the funds were not impressed with a trust, we are concerned with what is “equitable,” and the District should recover the past payments8 of Social Security benefits, whatever the total9 to the extent the mother received them since December 8, 1958, irrespective of the determination of her personal liability under the District Court’s order.
An equitably computed account of the mother’s obligation on behalf of her mentally ill son should depend upon a record of all such factors. I would remand that the facts may appear.
. Breach v. Government of District of Columbia, 116 U.S.App.D.C. 68, 72, 320 F.2d 790, 794 (1963).
. Ibid.
. The order nevertheless directed the conservator of the mother’s estate to pay $100 per month to the District commencing June 1, 1965.
. In 1958 the rate was $6.75; in 1963 it was $10.71; the annual rates varied between these figures in other years since the date of the father’s death.
. See note 3, supra.
. Cf. Savoid v. District of Columbia, 110 U.S.App.D.C. 39, 288 F.2d 851 (1961).
42 U.S.C. § 405<i) (1964).
. 42 U.S.C. § 407 (1964); cf. Celebrezze v. Sparks, 342 F.2d 286, 288, 289 (5 Cir. 1965).
. Not exceeding the District’s charges, of course.