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In re D.K.

April 11, 1985


Haines, A.j.s.c.


D.K., suffering from schizophrenia, was committed to Ancora Psychiatric Hospital in the course of proceedings taken pursuant to the provisions of N.J.S.A. 30:4-23 et seq. and R. 4:74-7. There were indications that she was pregnant. Consequently, a guardian (an attorney) was appointed for the supposed fetus. The guardian, through the institution of a second suit, obtained an order from the committing judge restraining Ancora personnel from treating the mother with any medication potentially harmful to the fetus. The order also restrained D.K. from consenting to or requesting an abortion. The mother was represented in these proceedings by a court appointed attorney.

At the time of the commitment proceedings a divorce action was pending between D.K. and her husband who claimed that he was not the father of any child which she might bear. The paternity issue is pending.

The guardian of the fetus filed an additional suit in this court on January 8, 1985, seeking a declaration that D.K. was incompetent

in the sense that she could not manage her affairs, pursuant to N.J.S.A. 3B:12-24 et seq. and R. 4:83, and the appointment of a guardian for her. An attorney was appointed to represent her in these proceedings.

An incompetency hearing was conducted at Ancora. D.K. testified, challenging the competency of her doctors and denying her pregnancy. Prior to the hearing she told her doctors that she wanted an abortion, but refused to submit to a required physical examination which would determine whether she was pregnant. At the hearing, she said she was opposed to an abortion, while acknowledging the difficulties which the birth of a child would present. Three doctors testified. They were of the unanimous opinion that she was not capable of managing her affairs. Their opinions were based upon her history of schizophrenia, her ambivalence concerning an abortion, her denial of pregnancy and her unwillingness to have the medical examination which would determine her condition and permit her to make an appropriate decision as what she should do. D.K. disagreed with the doctors' opinions although acknowledging her history of schizophrenia. She was a somewhat difficult, though obviously very intelligent witness, whose personal, economic and legal difficulties were most distressing.

Her attorney and the guardian of the fetus participated in the hearing. The former questioned the standing of the guardian, claiming that his appointment was defective and that he was not entitled to file the incompetency complaint as a matter of law. The court reserved decision on these questions and proceeded with the hearing. The guardian was permitted to participate. The court also announced that it would pursue an alternative jurisdictional route, addressing the question of incompetency on its own motion, relying upon its inherent power to protect the interests of litigants who may be incompetent. The decision as to D.K.'s competency was reserved at the end of the hearing in the hope that a medical examination could be arranged which would confirm or deny the fact of pregnancy, a matter which would affect the responsibilities of the guardian

to be appointed for D.K., if that appointment was necessary. No satisfactory guardian was then available.*fn1

An immediate decision was not in the interest of D.K. Before the decision could be reached D.K. was discharged from Ancora. The matrimonial and incompetency proceedings have been consolidated. D.K.'s attorney now moves for dismissal of the incompetency action. His motion is supported by his client's affidavit reflecting the fact of her discharge and asserting her competency. She admits that she is pregnant and says that she denied pregnancy at the Ancora hearing because she believed its doctors would force her to have an examination which she did not want and might force her to have an abortion. She has no wish now to have an abortion. The motion asserts her competence and challenges again the right of the fetus to be represented and the standing of its guardian to file the incompetency complaint. The court holds that the appointment of the guardian for the fetus was improper and that he had no standing to institute any action; it proceeds, however, with a determination of the incompetency issue. The reasons are set forth in this opinion.


The Guardian of the Fetus

In Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the United States Supreme Court decided that the right of a woman to have an abortion during the first trimester of her pregnancy was fundamental. The decision to abort was one to be reached by the woman and her physician; it was not subject to regulation by the state. The right to make that decision is part of the constitutional right of privacy. It may be exercised during the second trimester, subject to the right of

the state to adopt appropriate regulations designed to protect the health of the mother, a subject as to which the state is said to have a compelling interest. The state, however, does not then control the abortion decision. When the fetus becomes viable, between the 24th and 26th weeks, according to the Court's calculations, the state has a compelling interest in potential human life and may regulate or proscribe abortion, except when necessary for the preservation of the mother's life or health. Our New Jersey Constitution provides like rights. N.J. Const. (1947), Art. I, par. 1; Right to Choose v. Byrne, 91 N.J. 287 (1982).

This is the law today. The right of privacy recognized by our courts remains intact. Its fundamental nature was recognized in Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L. Ed. 2d 349 (1972), in the following language:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. [at 453, 92 S. Ct. at 1038]

Thus, it is the mother who controls the fetus, until viability occurs, not the reverse. That control is a constitutional right. If the mother is incompetent, control must be exercised through a guardian. In re Grady, 85 N.J. 235, 250-251 (1981). The appointment of a guardian for the fetus, prior to its viability, is therefore improper. Such an appointment permits a third person to control the fetus, contrary to Roe v. Wade. In Rothenberger v. Doe, 149 N.J. Super. 478 (Ch.Div.1977), plaintiff argued for the appointment of a guardian ad litem to assert a fetus' right to life. The court said:

This aspect of the case must be dismissed immediately since it has been determined conclusively by the United States Supreme Court that 'the unborn have never been recognized in the law as persons in the whole sense' and that during the first trimester of pregnancy a decision may be reached and effectuated to abort the fetus, free of any interference by the State.

[At 479; citations omitted]

The guardian for the fetus was appointed on December 14, 1984. The best available evidence, an opinion of a physician

eventually consulted by D.K. with the assistance of her attorney, indicates that she was then only eight to ten weeks pregnant.*fn2 At the time the guardian was appointed, therefore, the fetus could not have been viable and the appointment was unconstitutional and void.

A further problem with the appointment lies in the fact that our rules make no provision for it. R. 4:74-7 provides for civil commitment procedures and authorizes the appointment of a guardian ad litem and an attorney for a "minor"; there is no reference to a fetus. R. 4:26-2(b)(4) states: "The court may appoint a guardian ad litem for an infant or alleged incompetent person on its own motion." The reference to "person" is significant. A fetus is not a person. In Roe v. Wade, the Court said that "the word 'person,' as used in the Fourteenth Amendment, does not include the unborn." 410 U.S. at 158, 93 S. Ct. at 729.



R. 4:83 governs actions for the guardianship of incompetents. It requires the complaint to "state the name, age, domicile and address of the plaintiff, his relationship to the alleged incompetent, his interest in the action." In re Tierney, 175 N.J. Super. 614 (Law Div.1980), aff'd 177 N.J. Super. 245 (App.Div.1981), traced the history of this rule and concluded that a plaintiff must be a relative, or a creditor or must exhibit a relationship based upon contract, trust or confidence. A "mere stranger" cannot bring an action. See also In re Schiller, 148 N.J. Super. 168 (Ch.Div.1977). But see In re Bennett, 180 N.J. Super. 406 (Law Div.1981) (Apparently decided before the

Appellate Division addressed In re Tierney). It is therefore clear that the guardian for the fetus had no standing to file the incompetency action. Since his appointment was not proper, he had no authority to sue. This aside, he met none of the criteria set forth in Tierney.

The guardian argues that since he was appointed by another judge in another proceeding, an appointment which has not been appealed, this court has no authority to set the appointment aside. The argument is not persuasive. This court is not bound by the decision of another court on the same level. Furthermore, the appointment was unconstitutional and void; it may be challenged at any time. United N.J.R. & Canal Co. v. Parker, 75 N.J.L. 771 (E. & A.1908).

It must be observed, also, that the court which appointed the guardian of the fetus had no in personam jurisdiction for that purpose. The fetus was not a person, Roe v. Wade, supra, so that such jurisdiction could not have been obtained. "The jurisdiction of a court -- 'its right to speak' -- is its right, or rather its power, to pronounce a particular final judgment or decree as to a particular person in a particular action. . . . Jurisdiction over the person of a defendant, in a civil suit, is acquired by service of the court's process upon him." In re Hall, 94 N.J. Eq. 108 (Ch. 1922). A judgment purely in personam without actual service of process is coram non judice. Whalen v. Young, 15 N.J. 321 (1954).

The guardian points to R. 4:26-3(c) which authorizes the appointment of a guardian ad litem in "an action in which the interests of a person not in being are or may be affected or in which it is not known or is difficult to ascertain who is the person or class affected thereby." No case has applied this rule to a fetus for present purposes, or otherwise. If it is intended to so apply, it is contrary to Roe v. Wade and unconstitutional. ...

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