Law School Case Brief
In re M.R. - 135 N.J. 155, 638 A.2d 1274 (1994)
A court-appointed counsel's services are to the child. Counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed. A court-appointed guardian ad litem's services are to the court on behalf of the child. The guardian ad litem (GAL) acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. The rules are not intended to expand the circumstances when such appointments are to be made; neither are these appointments to be made routinely.
M.R. is a mildly- to moderately-retarded 21-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." Appellant, M.R.'s father, however, challenges the appointment of appellee mother as M.R.'s general guardian. He also questions whether M.R. should continue to live with her mother, as she has since her parents were divorced some years earlier, 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. The trial court found that appellant's daughter was incompetent and should continue to live with appellee mother, a judgment of which was affirmed by the Superior Court, Appellate Division (New Jersey). Appellant father challenged the validity of the lower court's appointment of appellee mother as general guardian of his mildly to moderately retarded daughter. Appellant contended that his daughter had the capacity to decide where she wanted to live.
Did a developmentally-disabled woman who is generally incompetent bear the burden of proof that she had the specific capacity to choose with whom of her divorced parents she will live?
The court found that the trial court erred when it held that appellant, as the party propounding his daughter's specific capacity, bore the burden of proof on that issue. The court held that the trial court should have placed on appellee, as the person challenging the daughter's capacity to decide, the burden of proving specific incapacity by clear and convincing evidence. The court further held that issue was not whether the daughter needed a general guardian, but rather whether it should sustain the decision that appellee serve as her daughter's guardian and that the daughter should live with her mother. The court concluded that the issue required a remand. The court reasoned that the purpose of the remand was to permit the trial court to reconsider the record in light of the court's findings. The declaration of incompetence was affirmed. The designation of guardian was reversed and remanded.
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