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In re M.R.

April 7, 1994

IN THE MATTER OF M.R., AN ALLEGED INCOMPETENT OR MENTALLY RETARDED ADULT


On certification the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

M.R. is a developmentally-disabled twenty-one-year-old woman with Down's Syndrome. She is unable to manage her own affairs. M.R.'s parents were divorced in 1979 and M.R. has resided with her mother since then. As M.R. approached her eighteenth birthday, she expressed a desire to live with her father. Because M.R.'s mother wanted M.R. to continue to live with her, she instituted an action seeking guardianship of M.R. Paul G. Hunczak, Esq., was appointed by the court to act as M.R.'s attorney.

At trial, the primary issue was whether M.R. had the specific capacity to express a preference to live with her father. The trial court noted that either parent would provide a "loving environment," but recognized that the mother and father presented "contrasting parenting styles." M.R.'s mother believed M.R. needed structure while M.R.'s father emphasized M.R.'s need for freedom in order to achieve independence. The court appointed Dr. Deborah Dawson, a doctor of psychology, to examine M.R. Dr. Dawson found M.R. mildly retarded, having between a six- and eight-year-old level of social behavior and an eight- year-old level of adaptive behavior skills. Dr. Dawson testified that M.R. was capable of expressing a preference and understanding that preference.

M.R.'s mother presented two expert witnesses in support of her contention that M.R. did not have the specific capacity to choose where to live. One witness was David Hegner, Chairman of the Special Education Department at M.R.'s school and M.R.'s special-education teacher. He testified that generally M.R. functioned at a second- or third-grade level. Mr. Hegner characterized M.R.'s reasons for preferring to live with her father as "fun things," and concluded that M.R. could not make an "adult decision" concerning residence.

In an in-chambers interview with M.R., the judge sought to ascertain M.R.'s preference. The court noted that M.R. associates her mother's home with school and rules and associates her father's home, which she visits on weekends and during summer vacations, with happier times. The court held that M.R.'s father bore the burden to show that M.R. had the specific capacity to express her preference of residence but had failed to meet that burden. In reaching that conclusion, the court relied on Dr. Hegner's testimony, finding Dr. Dawson's written report inconsistent with her testimony. In addition, the court relied on its interview with M.R., which it led it to conclude that M.R.'s reasons for wanting to live with her father were neither logical nor rational. Finding M.R. incompetent to express a preference, the court held that M.R.'s father bore the burden of proving that it was in her best interests that she live with him. The court found that he had failed to meet that burden as well and awarded guardianship to M.R.'s mother.

A majority of the Appellate Division affirmed the decision of the trial court, holding that the court properly had placed the burden of proof to show specific capacity on M.R.'s father. One judge dissented, contending that the burden should have been placed on M.R.'s mother as the party contending that M.R. lacks specific capacity to choose her residence.

M.R.'s father appealed to the Supreme Court as of right based on the dissent below. Certification was granted on the issues of the standard for determining the specific capacity of an otherwise-incompetent person to decide where to live and the role of appointed counsel in guardianship proceedings.

HELD: M.R.'s mother, the person challenging her incompetent daughter's specific capacity to decide where to live, has the burden of proving specific capacity by clear and convincing evidence. If the court finds that M.R. is competent, it should honor her preference to reside with her father. If the court finds that M.R. is not competent to make that choice, M.R.'s father, as the party challenging the present status, would bear the burden of proving that a change in residence would be in M.R.'s best interest. The role of M.R.'s attorney should be to advocate M.R.'s choice so long as it does not pose an unreasonable risk for her health, safety, and welfare.

1. The right of self-determination of developmentally-disabled people must be balanced with judicial concerns for their best interests. The clear public policy of New Jersey, as reflected in the State Constitution, legislative acts, administrative regulations, and judicial decisions, is to respect the right of self-determination of all people, including the developmentally disabled. (pp. 11-13)

2. In In re Grady, parents sought to sterilize their nineteen-year-old daughter who suffered from severe mental impairment caused by Down's Syndrome. The Court held that the best-interest test should be applied only when Lee Ann Grady's parents showed, by clear and convincing evidence, that Lee Ann was incapable of making the decision of whether to be sterilized for herself. The distinctions between M.R. and Grady lead the Court to grant enhanced respect to M.R.'s autonomy. Notwithstanding her impairment, M.R. appears capable of more choices than did Lee Ann Grady. Moreover, the decision where to live, if proved incorrect, can be corrected more easily than can the more serious decision to be sterilized. Also, there is an increased concern for the rights of the developmentally disabled. Although New Jersey has not yet adopted the Uniform Probate Code's limited guardianships for the developmentally disabled, courts should consider appointing limited guardians in appropriate cases. (pp. 14-19)

3. On remand, if M.R. expresses a preference for living with her father, M.R.'s mother will bear the burden of proving by clear and convincing evidence that M.R. is not competent to make that choice. If the trial court finds that M.R. lacks the specific capacity to decide where to live, M.R.'s father, as the party challenging the present status, will bear the burden of proving that a change in residence would be in M.R.'s best interests. (pp. 19-21)

4. A representative appointed attorney is supposed to be a zealous advocate for the wishes of his client, whereas the guardian ad litem evaluates what is in the best interest of his or her client and then represents the client in accordance with that judgment. The Committee on Civil Practice has proposed amendments to Rules 5:8A and 5:8B in respect of the roles of counsel and guardian ad litem. The amendment provides that attorneys acting on behalf of minors in abuse and neglect cases and termination of parental rights cases should act as counsel for the child pursuant to Rule 5:8A, rather than in the capacity of a guardian ad litem pursuant to Rule 5:8B. Many of the same considerations that prompted the Civil Practice Committee to recommend those amendments apply equally to the attorney for an incompetent. Accordingly, the Committee is asked to consider comparable amendments to Rule 4:86. In addition, the Rules of Professional Conduct mandates that an attorney representing a disabled person should maintain, as much as possible, a normal attorney- client relationship with that person. The attorney's role is not to determine whether the client is competent to make a decision, but to advocate the client's position, unless that position would impose an undue risk of harm to the client. (pp. 21-29)

5. Until Rule 4:86 is amended, the Court provides guidelines that should assist an attorney for an incompetent. A declaration of incompetency does not deprive a developmentally-disabled person of the right to make all decisions. The primary duty of the attorney is to protect and advocate that person's rights, including the right to make decisions on specific matters. On perceiving a conflict between the person's preferences and best interests, the attorney may inform the court of a possible need for a guardian ad litem. (pp. 29-31)

The declaration of incompetency of M.R. is AFFIRMED. The designation of M.R.'s mother as her guardian is REVERSED and the matter is REMANDED to the Chancery Division. Pending the outcome of the remand, M.R. shall continue to reside with her mother, subject to the visitation rights of her father as provided in the judgment of the Chancery Division.

CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, O'HERN, GARIBALDI and STEIN join in JUSTICE POLLOCK's opinion.

The opinion of the court was delivered by: Pollock, J.

Argued October 26, 1993

At issue is whether a developmentally-disabled woman who is generally incompetent bears the burden of proof that she has the specific capacity to choose with which of her divorced parents she will live. After adjudicating M.R. incompetent, the Chancery Division ruled that M.R.'s father, as the party seeking to prove M.R.'s specific capacity, bore this burden. Finding that he had failed to meet his burden, the court decided that M.R. should live with her mother. With one judge dissenting, the Appellate Division affirmed in an unreported decision. M.R.'s father appealed as of right from the issue that divided the Appellate Division, the allocation of the burden of proof on M.R.'s specific capacity. We then granted the father's petition for certification, 133 N.J. 444 (1993), which questioned both the standard for determining the specific capacity of an otherwise-incompetent person to decide where to live and the role of appointed counsel in guardianship proceedings.

I.

M.R. is a mildly- to moderately-retarded twenty-one-year-old woman with Down's Syndrome. All parties agree with the provision in the judgment of guardianship that "she is incapable of governing herself and managing her affairs." M.R.'s father, however, challenges the appointment of her mother as her general guardian. He also questions whether M.R. should continue to live with her mother, as she has since her parents were divorced in 1979, or with him.

As M.R. approached her eighteenth birthday, she expressed a desire to move from her mother's to her father's home. Because M.R.'s mother wanted M.R. to continue to live with her, she instituted this action seeking guardianship of M.R. Pursuant to Rule 4:86-4(b), the trial court appointed Paul G. Hunczak, Esq. to act as M.R.'s attorney.

At trial, the critical issue was whether M.R. had the specific capacity to express a preference to reside with her father. The testimony was in substantial accord about the objective facts pertaining to M.R.'s mental capacity. The court appointed Dr. Deborah Dawson, who has a doctorate in psychology and who has served as the director of the Guardianship Evaluation Project of the Center for Applied Psychology at Rutgers University, to examine M.R. Dr. Dawson found that M.R. was mildly retarded. She based that finding on M.R.'s I.Q. score of sixty-six on the revised Wechsler Adult Intelligence Scale test. Dr. Dawson testified that M.R.'s score on the Vineland Behavioral Scales placed her between a six- and eight-year-old level of social behavior. Additionally, M.R.'s adaptive behavior skills placed her around the eight-year old level. Dr. Dawson concluded that M.R. was capable of expressing a preference, testifying that "[t]he choice of where to live is [a] very specific [one] . . . that [M.R.] is able to understand."

M.R.'s mother presented two expert witnesses in support of her contention that M.R. did not have the specific capacity to choose where to live. The first witness was David Hegner, who holds a master's degree in special education, is the chairman of the Special Education Department at M.R.'s school, and had been M.R.'s special-education teacher for the two years preceding the trial. Mr. Hegner testified that, although M.R. was "inconsistent," she generally functioned at a second- or third-grade level. Her social functioning likewise was on an eight- or nine-year-old level. Although he acknowledged that she might make certain decisions at a "more advanced level" than an eight- or nine-year old, he remained skeptical of her ability to make "logical adult choices." Mr. Hegner characterized M.R.'s reasons for preferring to live with her father as "fun things," and concluded that M.R. could not make an "adult decision" concerning residence.

The second witness was Ira Yorn, a certified school psychologist with a master's degree in psychology. At the time of trial, he had been M.R.'s school psychologist and case manager for two years. He testified that M.R.'s I.Q. ranged from forty-five to fifty-four, scores that placed her in the educable level of the mentally-deficient range. Her verbal skills were equivalent to those of a seven- to ten-year old, and her non-verbal skills ranged from the ability of a six-and-one-half-year old to that of an eight-year old. Significantly, her practical and social judgment was that of a six-year old. Based on a history provided by M.R's mother, Mr. Yorn estimated that M.R. ranged from eight years, five months in community-living skills to twelve years, two months in personal-living skills on the Woodcock Johnson scale. Mr. Yorn evaluated M.R's overall functioning as that of an eight- or nine-year old.

Manifest from the record are the continuing disputes between M.R.'s parents over the custody of M.R. Notwithstanding the acrimony between them, the trial court found that either parent's home would provide a "loving environment." The court recognized, however, that the mother and father presented "contrasting parenting styles."

Both parents recognize the need for M.R. to become independent. They differ, however, on the method of achieving that goal, her mother perceiving the need for structure and her father emphasizing the need for freedom.

When visiting her father, M.R. answers the phone, participates in 4-H dances on Friday nights, attends catechism on Saturday mornings, and goes bowling. If she were to live with her father, she could attend the Elk's dance on Monday nights, and engage ...


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