The opinion of the court was delivered by: Davis
This opinion supplements the oral opinion of the court rendered on March 14, 1996.
J.M. is a nine year old developmentally disabled child who presently resides in Providence, Rhode Island, at a facility which is successfully treating her with electric shock by way of a system known as the Self-Injurious Behavior Inhibiting System (SIBIS). Although J.M. is presently an out-of state resident, she as well as her parents, are domiciliaries of Monmouth County, New Jersey.
J.M.'s parents are desirous of having her treated at a facility in New Jersey so that they can be closer to her and have a greater impact upon her future development. There now exists in New Jersey a facility which has received administrative approval from the State for the administration of SIBIS. *fn1 However, before such treatment can commence, the Developmentally Disabled Rights Act, N.J.S.A. 30:6D-5a(4), requires that a judicial hearing as to the necessity of such treatment be conducted; requires the appointment of a guardian ad litem for the continuation of such treatment and requires that the developmentally disabled person be represented by counsel and be physically present at the hearing. It is the statutory requirement of the physical presence of J.M. in court which presents for the first time the question as to whether this requirement is mandatory or directory. *fn2 The necessity of the SIBIS treatment, the standard of proof required and the suitability of the parents as guardians ad litem are the other issues which must be resolved.
Bancroft Incorporated is a non-profit entity providing treatment and educational services to individuals with developmental disabilities and is located in Haddonfield, Camden County, New Jersey. The Marlboro Township Board of Education, Monmouth County, New Jersey, is the district responsible for the educational needs of J.M., pursuant to N.J.S.A. 18A:46-1 to -13, N.J.A.C. 6:28-6.1(a) and the Individuals With Disabilities Education Act (IDEA), 20 U.S.C.A. § 1400 to -1491, which mandates free and appropriate public education. Monmouth County is the governmental entity responsible for the fees of any attorney the court appoints to represent the interests of the disabled. N.J.S.A. 30:6D-5(4). New Jersey Protection and Advocacy, Inc. (P & A ), is an entity which is federally funded under the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C.A. §§ 6041-6043, as amended, and was created after the demise of the Department of the Public Advocate, whose duties were then assumed by the Office of the Public Defender of New Jersey. N.J.S.A. 52:27E-65. Accordingly, P & A proceeds under federal law, but is not a part of any state agency. However, it now controls those matters which were traditionally handled by the former Public Advocate's office. *fn3 Bancroft was instructed to give notice of its petition to all other interested parties. Those parties were given the opportunity to intervene and be heard. No one who was noticed sought to intervene pursuant to the rules of court, R. 4:33-2, thereby leaving Bancroft, J.M. and J.M.'s parents, who were not represented by counsel, as the only formal participating parties. However, on the date of trial, P & A orally requested to participate. Those properly participating consented, and this court granted P & A leave to participate in the hearing.
The jurisdiction of the court over this guardianship proceeding is based upon its inherent parens patriae powers, In re Grady, 85 N.J. 235, 259, 426 A.2d 467 (1981); see also In the Matter of D.K., 204 N.J. Super. 205, 217-223, 497 A.2d 1298 (Ch. Div. 1985), and its statutory authority, N.J.S.A. 30:6D-5a(4). E.g., In re W.S., 252 N.J. Super. 298, 303, 304 (J. & D. R. Ct. 1977) (citing related jurisdictional statutes, N.J.S.A. 30:6Bs-1&2; N.J.S.A. 30:4-23, in granting application for guardian ad litem to consent to electro-shock therapy for institutionalized incompetent). See also, N.J.S.A. 3B:12-25.
Waivability of statutory requirement
of incompetent's appearance in court
The Developmentally Disabled Rights Act, more particularly, N.J.S.A. 30:6D-5a(4), requires the physical appearance in court of those covered under it so that they may confront and cross-examine all parties alleging, and all witnesses supporting, the necessity of that type of treatment over which the Legislature has expressed its desire to control. The state's concerns under this subsection relate to the use of shock treatment, psychosurgery and the performance of sterilization upon patients, or the use of patients for medical-behavioral or pharmacological research. The statute, in pertinent part, reads as follows:
Either the party alleging the necessity of such procedure or such person or such person's guardian ad litem may petition a court of competent jurisdiction to hold a hearing to determine the necessity of such procedure at which the client is physically present, represented by counsel, and provided the right and opportunity to be ...