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Drake v. Department of Human Services Division of Youth and Family Services

Decided: November 12, 1982.

DOROTHY DRAKE, ON BEHALF OF HER SON, JAMES DRAKE, APPELLANT,
v.
DEPARTMENT OF HUMAN SERVICES DIVISION OF YOUTH AND FAMILY SERVICES, RESPONDENT



On appeal from New Jersey Department of Human Services, Division of Youth and Family Services.

Fritz, Joelson and Petrella. The opinion of the court was delivered by Fritz, P.J.A.D.

Fritz

Dorothy Drake appeals on behalf of her son James who is presently 14 years old, from a decision of respondent to terminate his residential placement at The Woods Schools and return him to his home. The Final Decision was issued by the Director of the Division of Youth and Family Services and merely "SUSTAINED" the Recommended Decision of the "Adolescent Services Specialist" "for the reasons expressed by [her] in her Recommended Decision."

The mother is a 57-year-old widow suffering from essential hypertension and ulcers who has been long and conscientiously

concerned about her ability "to cope, both physically and emotionally, with the care of her multi-handicapped child."*fn1 We have learned nothing at all about James from the Recommended Decision except for broad generalizations about his "excellent progress at The Woods Schools" and the fact that he "enjoys his relationship with [his mother] and his family." The single conclusion that "he has the ability to be self-sufficient with respect to activities of daily life" is naked: there are no findings at all to support this determination. We are not even offered a definition of the "activities of daily life" and must guess whether this includes participation in group social activities, such as sports or drama, going to church, answering the telephone or watching television. We are relegated to presumptions to assume it even includes daily lavation, teeth brushing and toilet care.

We have learned some things about James from certain of the items comprising the record and from items not included in the record but concerning which appellant has before us a motion urging their inclusion, about which we will say more later. Respondent advises in its brief it "has no objection to the Court considering [at least some] of this material."

James was the product of a "catastrophic" Caesarean birth beset with "various complications." "He required resuscitation and experienced convulsive behavior shortly after birth. It was thought that James at one point would not survive, because of extensive brain damage." We know that he suffers from a "combination of deficits" "related to an early encephalopathy and a prolonged focal seizure" (apparently controlled by persistent and essential medication) and that at the very best his situation is described as mentally retarded. We know that in a neurological re-evaluation, apparently mandated by state regulation, which was part of a five-person team effort all within

four to seven months immediately prior to the date of the Recommended Decision, the neurologist discussed James' difficulties at length, expressed satisfaction with "present medications," although he wants to reconsider these in a year's time, and concluded his report with the unqualified assertion, "James will continue to require and benefit from a residential program." (Emphasis supplied). That sentiment was expressly shared by the team's psychologist, who recommended that "Jimmy continue in his current residential placement."

We turn first to appellant's complaint that she was "effectively denied her right to be represented by counsel during the administrative review." Notably, this issue does not argue for a "fair hearing"*fn2 or assert that the less formal administrative review is inadequate or insufficient. The issue simply and solely protests a denial of a right to counsel. As such it lacks merit. The Director received and considered comments from counsel for appellant and, as a matter of fact, the person who considered the matter and issued the Recommended Decision wrote appellant, with a copy to her lawyer, inviting inquiry respecting the procedure from either her or her lawyer.

It is perhaps unfortunate that when that same administrative official invited appellant to meet with her "to discuss your son James' current program at The Woods Schools," she chose to advise appellant, without sending a copy of this communication to the attorney, "Our meeting would be an informal one and your attorney would not be needed to represent you during our discussion." It is most understandable that a lay person, already deeply distressed by the persistent suggestion of bureaucratic disruption, might regard this as a direction to leave the attorney behind, even if the comment ...


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