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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5559-06T25559-06T2 BRIAN LYNG, Plaintiff-Respondent, v. JEAN MEARIN, Defendant-Appellant. ________________________________

Argued: February 11, 2008 - Decided: Before Judges C.S. Fisher and C.L. Miniman. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, FV-14-1131-07. Jack L. Wolff argued the cause for appellant. No brief was filed by respondent. PER CURIAM 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
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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 bear - to bear with me. .... Q. Okay. A. And I - I - I do - I do have heart - I have a heart condition. .... A. And I am - I am ready to tell the truth. Q. Good. So how can I help you today? A. Okay. Q. What would you like me to do for you today? A. I need help. I'm sorry. Judge, I - I know what happened. I know what happened. Which - which was on Mother's Day.

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Q. Mother's Day. Okay. Is there something that you want me to do with regard to your mother? A. No. Q. Okay. With whom have you been living with? A. I've been living with my mom. Q. Okay. And is this proceeding, why we're here today, does this have anything to do with your relationship with your mom? A. No. Q. Does it have anything to do with where you're living? A. No. Q. Does it have anything to do with something your mom did? A. Yes. Q. Well, why don't you tell me what happened on Mother's Day? Plaintiff then proceeded to tell the judge what happened, using similar broken speech, the sum and substance of which was that he was cleaning, someone broke a glass gift for his mother, and she swung the gift bag at his head because she was angry and he got a bruise and a small cut that did not need a bandage. In order to secure testimony from plaintiff, the judge asked many leading questions. Plaintiff stated that he wanted to live with his brother in Arizona and then testified that he did not want any contact with his mother. At the close of the evidence, defendant moved to dismiss the complaint on the ground that plaintiff did not have the mental capacity to prosecute the action and because the facts were insufficient to sustain the cause of action. Defendant also urged that even if the judge believed that plaintiff had met his burden of proof, the judge should provide relief that is less than a complete termination of the relationship between her and her son, such as counseling. With respect to lack of mental capacity, the judge found that plaintiff was competent pursuant to N.J.R.E. 601 inasmuch as he was capable of communicating adequately and understanding the obligation to tell the truth. The judge found the facts to which plaintiff testified and found from his testimony that there was a history of domestic violence in that defendant had slapped plaintiff about ten times on his face. The judge determined that plaintiff's testimony was credible and that he was concerned about his physical well-being with regard to the defendant. The judge further found that plaintiff's truly held belief was that he did not want any contact with his mother. Ultimately, the judge concluded that defendant's conduct was an offensive touching with no other legitimate purpose but to harass in violation of 135 N.J. 155, 169 (1994), for the proposition that "someone who is unable to manage his or her

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own affairs may still be capable of deciding where and with whom to live." He noted that plaintiff had no GAL and had never been declared incapacitated. The judge concluded that In re M.R. supported his decision not to appoint a GAL. The judge found that plaintiff did not need a GAL to prosecute the action because no incapacity petition had ever been filed nor was there any showing that plaintiff could not make the decision to prosecute. The Family Part judge concluded, if an adult comes before a Domestic Violence Court, and that adult is receiving services from the Division of Development Disabilities, and may not be competent for all purposes, if that adult satisfies me that he is competent to testify under our Evidentiary Rule 601, and, further, understands what it is that he is attempting to accomplish, and I'm satisfied that Brian understood that he wanted an order of protection from his mother, and that he was doing so voluntarily of his own free will, that I don't believe that a Court needs to look any further at the issue. The judge then turned his attention to certain items of personal property which plaintiff wished to have and completed the hearing. Defendant on appeal raises a multiplicity of issues, some relating to the decision not to appoint a GAL for the prosecution of the complaint and some relating to the merits of the action and plaintiff's entitlement to an FRO. Because the failure to appoint a GAL constitutes prejudicial error mandating reversal of the FRO, we need not address the substantive issues presented to us. Rule 4:26-2(a), dealing with representation by a guardian, provides: [A] minor or mentally incapacitated person shall be represented in an action by the guardian of either the person or property, appointed in this State, or if no such guardian has been appointed or a conflict of interest exists between guardian and ward or for other good cause, by a guardian ad litem appointed by the court in accordance with paragraph (b) of this rule. [R. 4:26-2(a) (emphasis added).] In pertinent part, subsection (b) provides: The court may appoint a guardian ad litem for a minor or alleged mentally incapacitated person on its own motion. [R. 4:26-2(b)(4) (emphasis added).] Judge Pressler in her comment to Rule 4:26-2 states: The use of the qualifier "alleged" to the use of the term "mentally incapacitated person" in subparagraphs (b)(2), (b)(3) and (b)(4) is to make clear that in contradistinction to the appointment of a guardian, which requires an adjudication of mental incapacitation, a guardian ad litem's appointment is dependent only upon the allegation of mental incapacitation. The guardian ad litem's responsibility is to advise the court as to whether a formal competency hearing may be necessary and if so, to represent the alleged mentally incapacitated person at that hearing.
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.... The function of the guardian ad litem is to protect the interests of his ward in respect of litigation. [Pressler, Current N.J. Court Rules, comment 3 on R. 4:26-2 (2007).] Rule 4:26-2(b) commits the appointment of a GAL for a minor or an alleged mentally incapacitated person to the sound discretion of the trial judge. However, Rule 4:26-2(a) mandates that a minor or mentally incapacitated person be represented by a GAL. Thus, judicial discretion under subsection (b) is limited by the mandate of subsection (a). We have recognized mental retardation as a basis for appointment of a guardian. In re Queiro, 374 N.J. Super. 299 (App. Div. 2005). Thirty-two year old Rosa Cristina Queiro was born with spina bifida and hydrocephalis and was confined to a wheelchair. Id. at 300. She was mildly retarded, functioning "'at the level of a 6 year, 7 month old child.'" Ibid. On the petition for appointment of a guardian of her person, the trial judge appointed a guardian, who recommended the appointment of a psychologist to conduct an evaluation of Cristina. Id. at 302. The psychologist observed that because Cristina "has mild mental retardation, it can be assumed that she could be more easily influenced and misled." Id. at 303. After a full trial on the merits, the judge found that Cristina required a GAL. Id. at 304-05. Although we reversed the judgment appointing the testamentary guardians on the ground that the wrong legal standard was applied, we did not disturb the trial judge's fact findings, including the conclusion that Cristina was in need of a guardian. Id. at 307. In the criminal context, mental retardation has been recognized as a basis for finding lack of capacity to consent to sexual relations. State v. Cuni, 159 N.J. 584, 590-96 (1999) (victim had an I.Q. of 70); State v. Olivio, 123 N.J. 550, 554 (1991) (victim had an I.Q. of 65); State v. Scherzer, 301 N.J. Super. 363, 398-99 (App. Div.), certif. denied, 151 N.J. 466 (1997). An undisputed allegation of mental retardation justifies a further inquiry into the mental capacity of the alleged mentally incapacitated person. In re D.K., 204 N.J. Super. 205, 225 (Ch. Div. 1985) ("No court properly exercising its powers, having received facts or observed actions which indicate that a litigant may be incompetent, can proceed without the assurance that such a litigant is able to manage his or her affairs."). Here, the judge determined to make his own inquiry rather than appoint a GAL to investigate and report to the court. In doing so, he erroneously applied the legal standard of N.J.R.E. 601 to determine mental incapacitation. N.J.R.E. 601 establishes the criteria to employ in determining whether a proposed witness is competent to be a witness. It provides: Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge . . . , or (b) the proposed witness is incapable of understanding the duty of a
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witness to tell the truth, or (c) except as otherwise provided by these rules or by law. [N.J.R.E. 601.] The rule begins with the presumption that every person is competent to be a witness. State v. Krivacska, 341 N.J. Super. 1, 36 (App. Div.), certif. denied, 170 N.J. 206 (2001). Defendant does not contend that the judge erred in concluding that plaintiff was competent to testify. However, that conclusion does not answer the question of whether plaintiff is mentally incapacitated from prosecuting a domestic violence complaint. The M.R. decision does not support the Family Part judge's conclusion that competence to testify is all that is required to proceed to the merits of a case filed by an alleged mentally incapacitated person. There, all parties agreed that M.R. could not govern herself or manage her affairs. M.R., supra, 135 N.J. at 159. Her IQ was sixty-six. Id. at 160. The issue before the trial court was a custody dispute between M.R.'s parents and a dispute arose over whether M.R. could express a reliable preference. Ibid. Importantly, M.R. was represented by appointed counsel and the Court discussed that counsel's proper role at length. Id. at 172-78. It is the absence of appointed counsel here that is pivotal. Plaintiff testified, in response to leading questions, that he did not know what the proceeding was about or what they were trying to accomplish. He did not know why he was there on the return date of the TRO. He did not know what he wanted the judge to do and he did not want the judge to do something about his mother. He testified that the proceeding had nothing to do with his relationship with his mother or where he was living. He only knew that the proceeding had something to do with something his mother did. Only careful prodding by the judge elicited testimony that plaintiff did not want any contact with his mother. This evident lack of comprehension should have alerted the judge to the necessity of a GAL to protect the interests of plaintiff in respect to the litigation. Although there can be no doubt that plaintiff had a strong interest in being free from physical abuse, no matter how mild, it is not clear that his best interests are served by terminating all contact with the mother he clearly expresses that he loves. Nor is it clear that he fully understands that he can apply to the court to modify the restraints imposed by the FRO. As a consequence, the FRO is reversed and the matter is remanded to the Family Part judge for appointment of a GAL, who shall represent the interests of plaintiff and determine whether it is in Brian's best interests to further pursue the domestic violence action or whether his interests have been fully served by the separation to date, in which case the TRO should be dissolved, and to advise the judge whether a formal mental incapacity hearing is necessary and, if so, the appropriate forum should be considered.

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Reversed and remanded for further proceedings consistent with this opinion. (continued) (continued) 13 A-5559-06T2 RECORD IMPOUNDED March 20, 2008 0x01 graphic

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