IN THE MATTER OF THE CIVIL COMMITMENT OF M.F. (SOCC-000001-06, SOMERSET COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3572-19

APPROVED FOR PUBLICATION
IN THE MATTER OF THE June 8, 2021
CIVIL COMMITMENT OF
M.F. APPELLATE DIVISION
_______________________

Argued December 2, 2020 – Decided June 8, 2021

Before Judges Alvarez, Geiger and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Law Division, Somerset County, Docket No. SOCC-
000001-06.

Thomas G. Hand, Assistant Deputy Public Defender,
argued the cause for appellant M.F. (Joseph E.
Krakora, Public Defender, attorney; Thomas G. Hand
on the briefs).

Anthony J. Serra argued the cause for respondent W.
F. (Serra Law Group, attorneys; Anthony J. Serra on
the brief).

The opinion of the court was delivered by

MITTERHOFF, J.A.D.

M.F.'s assigned counsel appeals from a February 19, 2020 order granting

M.F.'s legal guardian's application to intervene in M.F.'s involuntary
commitment proceedings. 1 On appeal, M.F.'s counsel argues the guardian has

not met the criteria for intervention under Rule 4:33-1 or Rule 4:33-2, and that

the plain language of N.J.S.A. 30:4-27.12 precludes intervention as a matter of

law. This case presents the issue of who is entitled to express a position on

whether M.F., a gravely disabled patient involuntarily committed to a

psychiatric hospital, continues to meet the statutory definition of

dangerousness. The issue is complicated by the fact that M.F. is unable to

express his preference due to his debilitating mental illness.

Based upon the record and in light of the applicable law, we affirm the

judge's order allowing the legal guardian to intervene, not to usurp assigned

counsel's role, but to fulfill his separate duties to safeguard the welfare of his

ward. Because M.F.'s views are not easily or readily ascertainable, however,

and considering the sharp divergence of the views of the legal guardian and

assigned counsel, we direct that on remand the judge appoint an attorney to

serve as guardian ad litem for M.F., to conduct an investigation, and report his

or her findings to the court.

We derive a brief history of the onset and progression of M.F.'s mental

illness and his ensuing long-term institutionalization from documents

1
The county adjuster took no position and is not participating in this appeal.

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2
contained in the record. 2 M.F. is a fifty-nine-year-old male who has been

committed at Greystone Park Psychiatric Hospital in Morris Plains since

January 25, 2012. A June 9, 2006 consultation report by Ross J. Baldessarini,

M.D., indicates that M.F., then forty-five years old, had been institutionalized

at Ancora State Psychiatric Hospital for three years, "following prolonged and

slowly more disabling mental illness that started when he started college in

[Pennsylvania] at age [eighteen]."

M.F. exhibited no early warning signs of mental illness before his senior

year in high school. To the contrary, prior to his senior year in high school,

M.F. "did very well academically, socially, and athletically, . . . was an A -

student and National Merit Scholar, and was accepted by several prominent

colleges, including Princeton," although he chose to matriculate at Villanova.

In his senior year of high school, in what Dr. Baldessarini describes as a

possible prodrome, M.F. began "behaving oddly and wanting to give away his

belongings." More acute illness erupted in his first year at Villanova,

manifested by "grandiose and religious delusions," "probable auditory

2
We recognize that the judge sustained an objection to the admission of the
hearsay medical records to support the guardian's motion for reconsideration.
We do not rely on them as evidential support of our decision whether the
guardian may intervene. Rather, we discuss M.F.'s documented medical
history merely to add context to the underlying dispute and the factual basis
for some of the guardian's concerns.

A-3572-19
3
hallucinations," and "very occasional episodes of explosive excitement with

aggressive threats or actions" that persist to date. In his late twenties through

his thirties, M.F. resided in group homes for psychiatric patients. He was

transferred to long-term psychiatric hospitalization, however, after "a brief

period of wandering and living in the streets in 2003." 3

The doctor's impression at that time, based on history, medical records,

and examination, was as follows:

This patient is suffering from a chronic and slowly
progressive form of severe mental illness. Despite
suggestive "manic" elements, he does not have a
history of sustained elevations or of cyclic major
changes in mood, and the previously suggested
formulation of bipolar schizoaffective disorder seems
less likely than a hebephrenic (disorganized) form of
schizophrenia, though very distinct from other forms,
and perhaps the least well studied therapeutically. 4

In 2006, M.F. was adjudicated an incapacitated person, and M.F.'s

brother, W.F., was appointed as his general co-guardian.5 Although there are

no documents in the record evidencing M.F.'s initial involuntary commitment

3
A June 17, 2019 Greystone commitment review hearing report also notes as
part of M.F.'s history that "[t]he patient eloped from a group home, [and] was
found naked, eating out of dumpsters."
4
The remainder of the report contains recommended medication regimens.
5
M.F.'s mother is the co-guardian.

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4
hearing, we infer that it occurred from the evidence in the record of the

periodic reviews that followed.

We begin with a brief review of the relevant statutes and court rules,

which guide our analysis. "A patient who is involuntarily committed to

treatment . . . shall receive a court hearing with respect to the issue of

continued need for involuntary commitment within 20 days from initial

commitment . . . ." N.J.S.A. 30:4-27.12(a). Normally, "the assigned county

counsel is responsible for presenting the case for the patient's involuntary

commitment to the court, unless the county adjuster is licensed to practice law

in this State, in which case the county adjuster shall present the case . . . ."

N.J.S.A. 30:4-27.12(b). The patient has the right to be represented by an

attorney, N.J.S.A. 30:4-27.11(c), must "have counsel present at the hearing[,]

and shall not be permitted to appear at the hearing without counsel." N.J.S.A.

30:4-27.12(d). "The patient, through counsel, shall have the right to present

evidence and to cross-examine witnesses." R. 4:74-7(e).

Certain evidence must be presented at the hearing. The application for

commitment shall be supported by the "testimony of a psychiatrist on the

patient's treatment team who has conducted a personal examination of the

patient as close to the court hearing date as possible, but in no event more than

five calendar days prior to the court hearing." Ibid. The court may also order

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any licensed psychologist who has examined the patient to appear and testify.

Ibid.

"The court shall enter an order authorizing involuntary commitment of

the patient . . . if it finds, by clear and convincing evidence presented at the

hearing that the patient is in need of continued involuntary commitment to

treatment" because the "patient is mentally ill" and the "mental illness causes

the patient to be dangerous to self or dangerous to others or property." R.

4:74-7(f)(1). Of relevance to this appeal:

“Dangerous to self” means that by reason of mental
illness the person has threatened or attempted suicide
or serious bodily harm, or has behaved in such a
manner as to indicate that the person is unable to
satisfy his need for nourishment, essential medical
care or shelter, so that it is probable that substantial
bodily injury, serious physical harm, or death will
result within the reasonably foreseeable future;
however, no person shall be deemed to be unable to
satisfy his need for nourishment, essential medical
care, or shelter if he is able to satisfy such needs with
the supervision and assistance of others who are
willing and available. This determination shall take
into account a person’s history, recent behavior, and
any recent act, threat, or serious psychiatric
deterioration.

[N.J.S.A. 30:4-27.2(h) (emphasis added).]

In so finding, the court must determine that "less restrictive alternative

services are not appropriate or available to meet the patient's mental health

care needs." R. 4:74-7(f)(1).
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6
 The court must then conduct "periodic reviews of the commitment." R.

4:74-7(f)(2). The court is required to conduct review hearings three times in

the first year of commitment, followed by at least one review annually "if the

patient is not sooner discharged." Ibid. Each review hearing follows the same

procedure established for the initial involuntary commitment hearing, and if

the court determines that involuntary commitment shall continue, "it shall

execute a new order." Ibid. "If the court concludes at the review hearing that

the evidence does not warrant continued commitment to treatment, it shall

order that the patient be discharged." R. 4:74-7(h)(1).

"If the [S]tate fails to establish each element essential to authorize

further restrictions on the patient's liberty, the general rule requires discharge

upon completion of discharge plans within forty-eight hours." In re

Commitment of M.C., 385 N.J. Super. 151, 160 (App. Div. 2006) (citing

N.J.S.A. 30:4-27.15(b)). However, "[t]here are two narrow exceptions to the

general rule." Ibid.

The first exception, not applicable here, is release subject to conditions.

Ibid. The second exception to the general rule is an "Order of Conditional

Extension Pending Placement," or CEPP. R. 4:74-7(h)(2). Pursuant to Rule

4:74-7(h)(2), "if a patient otherwise entitled to discharge . . . cannot be

immediately discharged due to the unavailability of an appropriate placement,

A-3572-19
7
the court shall enter an order conditionally extending the patient's

hospitalization and scheduling a placement review hearing within [sixty] days

thereafter." Our Supreme Court first approved the "hybrid status" then

referred to as "discharged pending placement," and now known as CEPP, in

the case In re S.L., 94 N.J. 128, 133, 142 (1983). There, "the Court held that

the [S]tate may continue to confine a person who is unable to 'survive

independently outside the institution without some care and supervision.'"

M.C., 385 N.J. Super. at 161 (quoting S.L., 94 N.J. at 132, 137, 139-40).

Although Rule 4:74-7(h)(2) "refers to circumstances in which 'a patient

cannot be immediately discharged due to the unavailability of an appropriate

placement,' [the Appellate Division] has looked to S.L. and limited the scope

of this exception to those who are 'incapable of survival on their own.'" Id. at

162 (quoting In re Commitment of G.G., 272 N.J. Super. 597, 604-05 (App.

Div. 1994)). "Thus, CEPP is not a fallback option when the [S]tate cannot

implement a discharge plan within forty-eight hours, and CEPP is not a means

through which the judge may delay a conditional release." Ibid. An order

placing a patient on CEPP must be supported by evidence that he or she is

incapable of surviving discharge, not "subjective judgments about whether a

patient who is entitled to discharge has desirable or optimal living

arrangements and family relationships." Id. at 163-64.

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8
 In this case, it is undisputed that M.F. is incapable of survival on his

own, and that he requires and will require a significant amount of care on an

inpatient basis, including close monitoring of his medication and blood levels.

It appears highly unlikely he will be "discharged" in a literal sense. Thus,

there is no question he satisfies the statutory first prong of the "danger to self"

standard applicable to the gravely disabled. Unfortunately, due to his serious

condition, M.F. himself is unable to express a preference whether to remain at

Greystone or step down to another type of facility, such as a nursing home or

group home. M.F.'s counsel argues that M.F. no longer meets the statutory

definition of dangerousness and that due process requires that he be discharged

and placed in an alternative setting. M.F.'s brother and legal guardian

successfully sought intervention to argue that M.F.'s placement at Greystone

should continue because of the absence of a less restrictive setting that is able

to meet M.F's needs.

On June 12, 2019, Judge Louis Mellinger conducted a commitment

review hearing for M.F. M.F.'s treating psychiatrist at Greystone, Dr. Svetlana

Volskaya, testified that M.F. was "unable to take care of himself" and that the

guardian "is in total agreement . . . that [Greystone is] the least restrictive

place" for him. The doctor offered no discharge plan because, in her opinion,

he was not appropriate for a group home setting and he was too young to be in

A-3572-19
9
a nursing home. She believed he benefitted from activities at Greystone and

that it was, for the time being, the least restrictive placement for M.F. No

other witnesses testified at the hearing.

The judge concluded that although from a "humanitarian" point of view,

Greystone may be the least restrictive setting for M.F., from a due process

perspective the county adjuster failed to demonstrate by clear and convincing

evidence that M.F. presented a danger to himself, others, or property, N.J.S.A.

30:4-27.2(m). Accordingly, the judge placed M.F. on CEPP status. See R.

4:74-7(h)(2). The judge also ordered that W.F. appear at the next hearing on

October 2, 2019, to review discharge planning.

Before that hearing could take place, the guardian moved for

reconsideration of the June 12, 2019 order that placed M.F. on CEPP status.

The guardian provided a certification which stated, in part, that it was in M.F.'s

"best interest that he remain committed at Greystone and that releasing him to

a different, less restrictive facility, would be detrimental to his well-being."

On July 10, 2019, the judge heard arguments on the motion for

reconsideration. M.F.'s attorney argued that the guardian did not have

standing to file the motion because he was not a party in the matter. W.F.

countered that, as the legal guardian for his brother, he was an interested party

in the case. The judge agreed that "the guardian does have standing to bring a

A-3572-19
10
motion" because the "guardian stands absolutely in the shoes of the patient."

Despite this pronouncement, the judge carried the matter for two weeks to

allow Greystone to determine whether it would re-screen M.F. for re-

commitment, thus obviating the need to decide the motion for reconsideration.

On July 24, 2019, the judge again heard arguments on the motion for

reconsideration. The guardian advised the judge that recommitment was

abandoned in favor of pursuing reconsideration of the June 12, 2019 order. At

this point, the judge observed that:

I don't know that the guardian has standing . . . to be
heard with regard to whether the patient should be
moved to CEPP status or kept in committed status.
That's not a province of the guardian. The province of
the guardian is . . . to protect the patient's interest as to
perhaps where they're going to be placed, or as to
treatment that's going to be resolved beyond the
hospital, or even issues involving the patient while at
the hospital, but not as to whether the patient is in
committed status or not. The guardian doesn't have
input or expert testimony as to whether the patient is
in committed status. That's the province of the
doctors and other experts.

So, I don’t know that the guardian [has]
standing
....

Unfortunately, the judge never definitively resolved the issue of standing until

February 19, 2020.

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11
 Meanwhile, M.F. remained on CEPP status between June and December

2019. While on CEPP status, M.F. was considered for, and ultimately rejected

from, A-Plus Group Home because they could not accommodate his level of

care. The record does not reflect whether other placements were considered in

this time frame.

The judge, however, tacitly approved the guardian's intervention on

December 11, 2019. He allowed "the guardian to participate through counsel

in any further civil commitment hearings," thus permitting "the guardian to

aver the guardian's position, either through evidence, witnesses, [or] closing

statements." The judge ordered that M.F. could not be discharged from CEPP

status without further application to the court. The judge set a February 19,

2020 hearing date.

In the interim, on December 26, 2019, M.F. was involved in an incident

where he struck another patient at Greystone in the face and, consequently,

Greystone filed for M.F.'s recommitment. A commitment review hearing was

ordered to take place on January 8, 2020.

At that hearing, Dr. Volskaya testified that M.F. remained a danger to

others based on the assault. She also testified that M.F. was a danger to

himself because of his high creatinine levels, which require close monitoring.

Dr. Volskaya indicated that in October she reduced M.F.'s lithium dosage

A-3572-19
12
because of his elevated creatinine levels. Dr. Volskaya opined that the

December 26, 2019 incident was causally related to the dosage change. The

guardian's attorney was permitted to cross-examine Dr. Volskaya over M.F.'s

assigned counsel's objection. The judge overruled the objection on the

grounds that he previously found "the guardian stands in the shoes of the

patient" and has an interest in the welfare of the patient. The judge ultimately

determined that continuing commitment was necessary because the county

adjuster proved, by clear and convincing evidence, that M.F. was a danger to

others based on the short period of time since the December 26, 2019

incident.6

On February 19, 2020, the judge heard arguments on M.F.'s assigned

counsel's motion to bar the participation of the guardian and the guardian's

cross-motion to participate. The judge held that the guardian established the

criteria for intervention under Rule 4:33-1 and was permitted to participate in

the proceedings:

the criteria has been met for intervention. The
guardian stands in the shoes of the ward and is
charged with the duties and responsibilities under the
guardian statute; (2) has the right under the guardian
statute and duty to protect the best interest and well-

6
The January 8, 2020 order is the subject of an appeal pending under Docket
No. A-2737-19, also decided today.

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13
 being of the ward, and medically also under the
guardian statute; (3) the guardian asserts that the
ward's interest is not adequately protected because he
disagrees with the public defender and asserts that . . .
Greystone is the best and safest environment for the
ward and asserts the potential danger with regard to
the [neuroleptic malignant] syndrome, 7 and the ward
has only known Greystone since 2012 – these are all
legitimate concerns and empowered under the
guardian statute; and (4) a timely application to
intervene must be made.

The judge issued an accompanying written order mirroring his oral decision.

On appeal, M.F.'s assigned counsel raises the following issues for our

consideration:

POINT I

THE TRIAL COURT'S DECISION TO ALLOW
M.F.'S GUARDIAN TO INTERVENE IN THIS
MATTER MUST BE REVERSED BECAUSE M.F.'S
GUARDIAN FAILED TO SATISFY THE
REQUIREMENTS FOR INTERVENTION AS
REQUIRED BY THE COURT RULES, THE
CONSTITUTION[,] AND CASE LAW[,] AND HIS
INTERVENTION HAS AND WILL CONTINUE TO
HARM M.F.

A. THE TRIAL COURT ERRED AS A
MATTER OF LAW WHEN IT MISAPPLIED

7
According to the National Institute of Neurological Disorders and Stroke,
neuroleptic malignant syndrome "is a life-threatening, neurological disorder
most often caused by an adverse reaction to neuroleptic or antipsychotic
drugs." Neuroleptic Malignant Syndrome Info. Page, Nat'l Inst. of Health,
https://www.ninds.nih.gov/Disorders/All-Disorders/Neuroleptic-Malignant-
Syndrome-Information-Page.

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14
 THE COURT RULES TO ALLOW THE
GUARDIAN TO INTERVENE IN THIS CIVIL
COMMITMENT AND PROSECUTE THE
ACTION FOR CIVIL COMMITMENT, A
POWER WHICH ONLY RESIDES WITH THE
STATE.

B. THE TRIAL COURT ERRED AS A
MATTER OF LAW WHEN IT IGNORED THE
CLEAR AND UNAMBIGUOUS LANGUAGE
OF N.J.S.A. 30:4-27.12 TO GRANT THE
GUARDIAN THE AUTHORITY TO
INTERVENE IN THE CIVIL COMMITMENT
PROCEEDING AND CO-PROSECUTE
COMMITMENT OF HIS WARD BY
PRESENTATION OF HIS OWN WITNESSES.

C. THE TRIAL COURT ABUSED ITS
DISCRETION WHEN IT GRANTED THE
GUARDIAN PERMISSION TO INTERVENE
IN THIS MATTER AND THE GUARDIAN'S
INTERVENTION HAS AND WILL
CONTINUE TO HARM M.F.

We reject M.F.'s argument that N.J.S.A. 30:4-27.12 categorically

precludes the guardian from intervening in his ward's commitment hearing.

"When construing a statute, our primary goal is to discern the meaning and

intent of the Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). "To

determine that intent, 'we look first to the plain language of the statute, seeking

further guidance only to the extent that the Legislature's intent cannot be

derived from the words that it has chosen.'" McGovern v. Rutgers, 211 N.J.

94, 108 (2012) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553

A-3572-19
15
(2009)). When a statute's plain language is clear, our interpretative task is

complete. In re Kollman, 210 N.J. 557, 568 (2012) (citing N.J. Ass'n of Sch.

Adm'rs v. Schundler, 211 N.J. 535, 549 (2012)).

N.J.S.A. 30:4-27.12 reads, in part, that:

b. Except as provided in subsection c of this section,
the assigned county counsel is responsible for
presenting the case for the patient’s involuntary
commitment to the court, unless the county adjuster is
licensed to practice law in this State, in which case the
county adjuster shall present the case for the patient’s
involuntary commitment to the court.

c. Notwithstanding the provisions of subsection b. of
this section and upon notice to the county adjuster:

(1) The Attorney General, or the county
prosecutor acting at the request of the Attorney
General, may supersede the county counsel or
county adjuster and assume responsibility for
presenting any case for involuntary commitment
to treatment or may elect to participate with the
county counsel or county adjuster in presenting
any such case; and

(2) The county prosecutor may supersede the
county counsel or county adjuster and assume
responsibility for presenting any case for
involuntary commitment to treatment initiated
by the county prosecutor pursuant to subsection
c. of section 10 of P.L.1987, c.116 (C.30:4-
27.10) or may elect to participate with the
county counsel in the presentation of any such
case.

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 M.F.'s assigned counsel has steadfastly adhered to the view that because

the statute specifically names the county adjuster, prosecutor, or Attorney

General as persons entitled to present a case for commitment, the guardian has

no role in the matter because he cannot subsume the role of the prosecuting

authority. Although we agree W.F. cannot subsume the county adjuster's role

in presenting the case, the statute does not expressly prohibit the intervention

of the legal guardian for other purposes. As the judge recognized, the guardian

owes a duty to M.F. to safeguard his well-being and protect his best interests

particularly where, as here, the "wishes of the ward are not ascertainable with

reasonable efforts." N.J.S.A. 3B:12-56(d).

We also reject M.F.'s counsel's argument that the judge abused his

discretion in allowing W.F. to intervene. Rule 4:33-2, in pertinent part, states

that "anyone may be permitted to intervene in an action if the claim or defense

and the main action have a question of law or fact in common." Because Rule

4:33-2 is "the more liberal permissive intervention rule," we must "review the

court's determination of a permissive intervention motion under an abuse of

discretion standard." N.J. Dep't of Env't Prot. v. Exxon Mobil Corp., 453 N.J.

Super. 272, 286-87 (App. Div. 2018) (citing City of Asbury Park v. Asbury

Park Towers, 388 N.J. Super. 1, 12 (App. Div. 2006)).

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 M.F.'s serious condition, which is undisputed, requires significant

institutional care and supervision. His diagnosis of schizophrenia,

disorganized type, is complicated by a history of neuroleptic malignant

syndrome, which according to his treating doctors is triggered by changes in

his environment. 8 Indeed, M.F. was rejected from one facility because they

could not accommodate his level of care. Because the gravity of his condition

also means he cannot communicate his wishes or desires, it is the guardian's

statutorily vested duty to exercise M.F.'s rights in a manner consistent with his

best interests. N.J.S.A. 3B:12-56(d). Mindful of these unique circumstances,

8
A June 2019 commitment review report described the nature of this
condition:

The patient does not tolerate changes in environment
well. When he was transferred from Hagedorn to
Greystone Park Psychiatric Hospital in 2012, several
times he developed neuroleptic malignant syndrome
(which is potentially a deadly condition, which requires
all antipsychotics to be stopped). As a result of that, he
developed severe psychosis with paranoia and became
very assaultive, had to be transferred to a different unit in
order to stabilize him. It took the patient [a] very long
time to decrease psychosis and improved ADL's, but not
to the level he had before his transfer to Greystone Park
Psychiatric Hospital. He remains in active treatment.
Recently lithium was decreased because of the side
effects of increase in creatinine.

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18
we conclude that it was not an abuse of discretion to permit the guardian to

intervene in this matter on behalf of his ward.

We note that the judge had considered appointing a guardian ad litem for

M.F. Pursuant to Rule 4:86-4(d), the court may appoint a guardian ad litem

"in addition to counsel . . . to evaluate the best interests of the alleged

incapacitated person and to present that evaluation to the court," though such

appointments are reserved for "special circumstances." In addition, Rule 4:26-

2, "which governs the appointment of a guardian to represent the interest of an

infant or incompetent person in the context of a particular litigation . . . ." In

re Clark, 212 N.J. Super. 408, 412 (Ch. Div. 1986), provides that:

a minor or mentally incapacitated person shall be
represented in an action by the guardian of either the
person or the 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 . . . .

[Rule 4:26-2(a)].

Our Supreme Court discussed the distinct nature of the roles of assigned

counsel and a guardian ad litem in the case In re M.R., 135 N.J. 155, 172-78

(1994), involving a developmentally disabled young woman's specific capacity

to choose where to live. M.R.'s father argued "that the hearing was unfair

because M.R.'s appointed counsel did not zealously advocate her stated

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preference to live with him." Id. at 172. Pursuant to the version of Rule 4:86-

4 in effect at the time – which neither required counsel to argue the alleged

incompetent's stated preferences, nor permitted the appointment of a guardian

ad litem in some cases – M.R.'s attorney recommended that M.R.'s preference

should not be given significant weight, and that "either household would serve

M.R.'s best interests." Id. at 173. The question, the Court said, was "whether

the role of appointed counsel for an incompetent is zealously to advocate the

incompetent's position or simply to inform the court of counsel's perception of

the incompetent's best interests." Id. at 172.

Looking to "the analogous context of child-custody cases," in which a

court normally appoints counsel to represent the child and a guardian ad litem

to conduct independent factfinding and make a recommendation based on the

child's best interests, id. at 173-74, the Court explained:

In sum, several reasons support the distinction
between an attorney and a guardian ad litem for an
incompetent. First, the attorney and guardian ad litem
may take different positions, with the attorney
advocating a result consistent with the incompetent's
preferences and the guardian urging a result that is
different but in the incompetent's best interests.
Second, the attorney and guardian may differ in their
approaches. When interviewing interested parties, the
attorney for an incompetent should proceed through
counsel, but often a guardian ad litem may
communicate directly with other parties. Finally, a
guardian may merely file a report with the court, but

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20
 the attorney should zealously advocate the client's
cause.

[Id. at 175.]

The Court concluded that not "every case [would] require both in the future,"

but that in some cases, "an incompetent, like a minor, may need both an

attorney and a guardian ad litem." Ibid. Accordingly, the Court stated that on

remand, M.R.'s "attorney's role should be to advocate her choice, as long as it

does not pose unreasonable risks for her health, safety, and welfare," and that

"[i]f the court concludes that M.R. is incapable of deciding where to live, it

may appoint a guardian ad litem to represent her best interests." Id. at 178.

In this case, M.F. is incapable of communicating his own wishes or

desires to his counsel. Thus, counsel is merely reporting to the court his

perception of what is in his client's best interests. Under those circumstances,

M.R. directs that appointment of a guardian ad litem for an adult incompetent

may be appropriate. Ibid.

We conclude that "special circumstances" exist to appoint a guardian ad

litem given M.F's inability to communicate with assigned counsel. R. 4:86-

4(d). We also conclude that good cause exists due to the sharply divergent

views giving rise to a conflict between M.F.'s guardian and his assigned

counsel, R. 4:26-2(a), which likewise warrants the appointment of a guardian

A-3572-19
21
ad litem on behalf of M.F. to make decisions or recommendations to the court

guided by the best interest standard.

To the extent we have not addressed any of the remaining arguments

raised by the parties, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3572-19
22