The opinion of the court was delivered by: Pollock, J.
On certification to the Superior Court, Appellate Division.
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.
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 in swimming, aerobics, and basketball. According to her father, [a]t our house [M.R.] has choices. She can pick out what she likes to wear. She can pick out what she likes to do on the weekends. When she's there in summertime, she can pick out what she likes to do. We go to the store. She can scan groceries. She can -- she has activities that she can go to. She has a good comfortable atmosphere at our house.
M.R.'s mother, on the other hand, focused more on the importance of balancing M.R.'s freedom of choice with structure in her home life. She testified:
[M.R.] needs to know that there are some rules that she has to follow. And she has to follow them. She has those chances to do things that she wants. She gets her choices. But in some instances I don't think it's good to just be that free, and give her that many, many choices. . . . I think it's important, very important, for her to have [a] structured life, at home, as well as in school.
Mr. Hegner confirmed that developmentally-disabled students need structure. One reason is "because the types of jobs that most of my students are going to get are going to be repetitive in nature when they leave high school." Nonetheless, M.R. leads an active life while with her mother.
During the summer of 1990, M.R. had a summer job and participated in the Special Olympics. With her mother, M.R. was responsible for household chores, helped with food shopping, and went shopping alone. As of the time of the hearing, M.R. attended dance classes on Wednesday nights, participated in track and field, went to the movies with friends, and camped with her mother and step-father. She has attended Confraternity of Christian Doctrine classes and been confirmed in the Catholic Church. Sometimes M.R. joins her stepfather, a district sales manager for a baking company, on a cake truck. According to her mother, she is allowed to answer the family phone, but not her stepfather's business phone.
M.R.'s father thought that M.R. was "being held back" in her mother's home. Her I.Q. scores, however, had increased from fifty-four in 1986 to sixty-six in 1991. Dr. Dawson attributed the increase in part to M.R.'s enrollment in a more challenging Educable Mentally Retarded class over the last two years, a class that M.R. has attended while living with her mother.
M.R. believed that her father was more likely than her mother to heed her wishes, a belief shared by Dr. Dawson. Similarly, Dr. Dawson thought that M.R. would experience more growth in "community skills in [her father's household] simply because she's given more exposure and more experience." Finally, she testified that since 1987 M.R. had expressed a preference to live with her father. To deny M.R. her choice, Dr. Dawson stated, would be a "significant blow" to M.R.'s self-esteem.
In an in-chambers interview, the trial court sought to ascertain M.R.'s preference. M.R. spoke enthusiastically about her summer job at her school, a job that would entail living with her mother. When, however, the court asked M.R. whom it should appoint to help her "make tough decisions," she chose her father.
The trial court concluded that M.R. associates her home in Sparta with school and rules and associates her father's home, which she visits on weekends and during summer vacation, with happier times. It also noted M.R.'s belief that if she were allowed to live with her father, she could be like her older sister, who had moved to her father's home. M.R. believed that, like her sister, she could obtain a driver's license, leave her father's home, marry, and have a baby. The court summarized M.R.'s reasons for wanting to live with her father as "boys, babies, and boyfriends."
The court recognized that M.R. "had expressed a preference" to live with her father. Whether M.R. was capable of expressing a reliable preference, however, was another matter. It held that M.R.'s father bore the burden to show that M.R. had the specific capacity to express that preference:
The question, of course, is whether or not [M.R.] has the mental capacity to decide [where to live]. It is the defendant [M.R.'s father], who argues that there should be a finding by the court of specific competency and, therefore, the burden is upon the defendant to convince the court by [a] preponderance of the evidence that it's ...