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Lyng v. Mearin

March 20, 2008

BRIAN LYNG, PLAINTIFF-RESPONDENT,
v.
JEAN MEARIN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-1131-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 11, 2008

Before Judges C.S. Fisher and C.L. Miniman.

Defendant Jean Mearin timely appeals from the entry of a Final Restraining Order (FRO) on May 21, 2007, an order denying an order to show cause for reconsideration of the FRO and an Amended FRO entered on November 29, 2007, all in favor of plaintiff Brian Lyng, defendant's thirty-year-old son, who suffers from Down Syndrome. Because the Family Part Judge erred in refusing to appoint a guardian ad litem (GAL) for plaintiff, we reverse.

Until the entry of the May 15, 2007, temporary restraining order (TRO), plaintiff had lived with defendant his entire life. Plaintiff has an intelligence quotient of seventy-two and is unable to manage his personal affairs and requires supervision and close monitoring. The Association of Retarded Citizens, Social Security Administration and New Jersey Division of Development Disability all provided services to plaintiff. Plaintiff had a heart condition, for which he had three surgeries and for which he is monitored and receives care, and requires a special diet. His heart condition requires that he sleep in an air-conditioned room and he must also use sunscreen and wear sunglasses with UV protection.

On May 21, 2007, before any testimony was presented and before any witness was ever sworn, defendant objected to proceeding on the ground that plaintiff did not have the mental capacity to file a complaint. The judge determined that there was no GAL and proceeded to hear testimony from plaintiff with respect to his ability to understand the difference between telling the truth and lying and his understanding that he had an obligation to tell the truth, to which plaintiff answered affirmatively. Then, the following testimony was elicited by the judge:

Q: Do you know what this proceeding is about? Do you know what we're trying to accomplish here today?

A: No.

Q: Do you know why you're in court today?

A: I know why. . . . .

Q: . . . Do you know why you're here today?

A: No.

Q: [A]re you here to ask me to do something for you?

A: Yes.

Q: [W]hat would you like me to do for you today?

A: I don't know. I'm sorry. I just want -- I want you just -- just to -- just to ...


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