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In re Promulgation of Guardianship Services Regulations

Decided: July 30, 1986.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 198 N.J. Super. 132 (1984).

For modification and affirmance -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by O'Hern, J.


[103 NJ Page 620] It has long been recognized that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the fourteenth amendment to the United States Constitution. Zablocki v. Redhail, 434 U.S. 374, 385, 98

S. Ct. 673, 680, 54 L. Ed. 2d 618, 630 (1978) (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40, 94 S. Ct. 791, 796, 39 L. Ed. 2d 52, 60 (1974)).

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.

[ Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 1541, 32 L. Ed. 2d 15, 35 (1972).]

It is also an unfortunate reality of American life that in some instances parents are either unable or unwilling to provide the care and nurturing needed by their minor children. The welfare of those children is, of course, always an important consideration in any case pitting the state, as parens patriae, against the rights of natural parents. See Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391-92, 71 L. Ed. 2d 599, 603 (1982) (state may terminate parental rights upon clear and convincing evidence that termination is in child's best interest); that concern becomes even more acute when the children involved are mentally retarded.

At issue in this case are regulations of the Department of Human Services that empower its Division of Developmental Disabilities (DDD), formerly the Division of Mental Retardation (DMR),*fn1 to assume a supervisory guardianship role over mentally retarded minors whenever it determines that the minors' parents or guardians are absent and cannot be located. That determination and the subsequent exercise of guardianship under the regulations are accomplished entirely in-house, without the participation of a judge or other independent adjudicator. The agency's guardianship role ceases automatically upon the reappearance of a parent or legal guardian.

The Public Advocate has challenged the Division's rules on the grounds that the regulations exceed the agency's authority, unconstitutionally discriminate against mentally retarded minors, and violate the due-process rights of affected parents. Because of the important interests involved, we granted the Public Advocate's petition to review the judgment of the Appellate Division, In re Guardianship Servs. Regulations, 198 N.J. Super. 132 (1984), upholding the regulations. 102 N.J. 366 (1985). With certain modifications, we now affirm that judgment.


In 1983, the Department of Human Services, ostensibly to "fill a gap" in the existing statutory scheme governing the provision of guardianship services to mentally retarded individuals, promulgated N.J.A.C. 10:45-1.3 and -1.4.*fn2

Briefly stated, the regulations are designed as an interim measure that allows the Division to provide guardianship-of-the-person services to mentally retarded minors in need of such supervision by reason of the death or prolonged absence of the minors' parents or legal guardians. "Guardianship services" are broadly defined in N.J.S.A. 30:4-165.4, as amended by L. 1985, c. 133, ยง 1, as "those services and programs provided by the Division of Mental Retardation for the purpose of implementing its responsibility toward the individuals for whom it is performing the services of guardian of the person." The actual provision of guardianship services is accomplished through the DMR's Bureau of Guardianship Services. N.J.A.C. 10:45-1.4(b).

The regulations had as their impetus a report by the then-Division of Mental Retardation that identified 130 children currently receiving DMR services who had no identifiable or accessible guardian. Although the DMR was specifically authorized by statute to provide the services of "guardian of the person" to individuals receiving Division care, the provision, N.J.S.A.

30:4-165.5, by its own terms applied only to mentally retarded persons over age 21. There was and still is, however, no comparable statutory authorization for "guardian of the person" services to minors receiving Division care who, through death or abandonment, suddenly find themselves without legal guardians.*fn3

Finding a gap in the DMR's ability to provide for the needs of mentally retarded minors, short of a lengthy proceeding seeking court appointment as legal guardian pursuant to N.J.S.A. 30:4C-15 to -24, the Commissioner of the Department of Human Services, in late 1983, adopted N.J.A.C. 10:45-1.3(b), (d), and -1.4(b).

The Division's position is that the scope of the regulations is limited. They apply only to those children already receiving Division "functional services" (see infra n.4); the DMR's guardianship of the person is triggered only after a finding of orphanage or temporary or permanent abandonment, a determination that turns on a series of strict notice requirements that produce no response from a parent or guardian within 45 days; and guardianship authorization lasts only so long as the parents or legal guardian remain unavailable or until the child reaches majority. Under the regulations, the Division's power to make decisions affecting the health, safety, and personal welfare of a minor is roughly equivalent to that of a parent. See N.J.S.A. 3B:12-51 and -52 (defining powers of guardian of the person of minor).

The Division maintains that it does not actually assume legal guardianship under the regulations, nor does it desire to be appointed permanent legal guardian. The intent of the provisions, it asserts, is to provide continuity in meeting the guardianship needs of mentally retarded minors in the interim between the death or permanent absence of a legal guardian and the court appointment of a new guardian, or during the periods when legal guardians may absent themselves for extended periods of time, short of permanent abandonment.


The Public Advocate's three-part attack on the facial validity of these regulatory provisions begins with the assertion that the regulations are in excess of the Department's statutory authority. We disagree, and find that the regulations are clearly "'within the fair contemplation of the delegation of the enabling statute.'" New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561-62 (1978) (quoting Southern Jersey Airways, Inc. v. National Bank of Secaucus, 108 N.J. Super. 369, 383 (App.Div.1970)).

The Legislature has broadly charged the Division with the responsibility of providing comprehensive services, including guardianship services, to mentally retarded persons. N.J.S.A. 30:4-165.1. In addition, the Commissioner of the Department of Human Services has been delegated the power to make all reasonable and necessary regulations "to ensure the health, safety, welfare and earliest appropriate release of persons admitted to residential services for the mentally retarded." N.J.S.A. 30:4-25.7. When faced with the kind of sweeping legislative mandate and broad rulemaking authority present in this case, our courts have traditionally afforded the agency charged with implementing the legislative policy a presumption of validity and reasonableness in its rulemaking. New Jersey Guild of Hearing Aid Dispensers v. Long, supra, 75 N.J. at 561. Agency powers are to be liberally construed, and regulations

fairly implicit in the statutory scheme will be upheld unless they are irrational, arbitrary, or otherwise contrary to law. Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 477 (1984). There is nothing of the sort in these regulations.

We have on more than one occasion recognized this State's "strong moral and legal commitment to care for the handicapped." New Jersey Ass'n for Retarded Citizens, Inc. v. New Jersey Dep't of Human Servs., 89 N.J. 234, 249 (1982); see also Levine v. Department of Institutions and Agencies, 84 N.J. 234, 249 (1980) (noting societal commitment "to provide for the care of mentally retarded persons"). As we stated in New Jersey Ass'n for Retarded Citizens:

The Legislature has declared it the policy of this State to maximize the developmental potential of these citizens while affording them the maximum feasible personal liberty. Like all other citizens, the mentally retarded have the right to pursue happiness. Unlike other citizens, they have unique hurdles to overcome in doing so. Rather than exclude them from the pursuit of happiness, the Legislature has made an effort to include them in our civic community by providing them the special services they need to develop and grow.

[89 N.J. at 252.]

To that end, the Department of Human Services, and, in particular, the DMR, has been charged with assessing the special needs of our less-fortunate children, and providing the special services to meet those needs. It is an area of agency experience and expertise in which a court should be particularly hesitant to substitute its judgment when the agency asserts a special need for an authority to make interim decisions for the best interests of the orphaned or abandoned mentally retarded child. In re Barnert Memorial Hosp. Rates, 92 N.J. 31, 41 (1983) (judicial deference to discretion exercised by agency experts); Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 93 (1973) (court should defer to agency where expertise is pertinent factor).

The Public Advocate urges that the provisions of N.J.S.A. 30:4C-15 to -24, authorizing the Department of Human Services to seek guardianship of minors through a court petition to

terminate parental rights, operate as the sole statutory recourse for the assertion of guardianship over all minors. We agree with the Appellate Division, however, that nothing in the statutory scheme suggests that the termination-of-parental-rights statute precludes the agency from promulgating rules allowing it to provide interim ...

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