Levine v. State Dept. of Institutions and Agencies

• Decision Date: 30 July 1980
• Citation: 84 N.J. 234,418 A.2d 229
• Parties: Solomon LEVINE and Marilyn E. Levine, as guardians ad litem for Maxwell Levine, a minor, Plaintiffs-Appellants, v. STATE of New Jersey DEPARTMENT OF INSTITUTIONS AND AGENCIES, County of Bergen, Bergen County Adjuster's Office and North Jersey Training School, Defendants-Respondents. Robert G. GUEMPEL, Individually and on behalf of his daughter, Linda J. Guempel, a minor, Plaintiff-Respondent and Cross-Appellant, v. STATE of New Jersey, Ann Klein, Commissioner of the Department of Human Services, the County of Morris and Helen Brooks, Morris County Adjuster, Defendants-Appellants and Cross-Respondents.
• Court: New Jersey Supreme Court

Page 234

84 N.J. 234

418 A.2d 229

Solomon LEVINE and Marilyn E. Levine, as guardians ad litem for Maxwell Levine, a minor, Plaintiffs-Appellants, v. STATE of New Jersey DEPARTMENT OF INSTITUTIONS AND AGENCIES,

County of Bergen, Bergen County Adjuster's Office

and North Jersey Training School,

Defendants-Respondents.

Robert G. GUEMPEL, Individually and on behalf of his

daughter, Linda J. Guempel, a minor, Plaintiff-Respondent and Cross-Appellant, v. STATE of New Jersey, Ann Klein, Commissioner of the

Department of Human Services, the County of Morris

and Helen Brooks, Morris County

Adjuster,

Defendants-Appellants

and

Cross-Respondents.

Supreme Court of New Jersey.

Argued Dec. 10, 1979.

Decided July 30, 1980.

David L. Rutherford, Hackensack, for plaintiffs-appellants Solomon and Marilyn E. Levine (Michael J. Mella, Fair Lawn, attorney).

Joseph E. Irenas, Newark, for plaintiff-respondent and cross-appellant Robert G. Guempel (McCarter & English, Newark, attorneys; Jane S. Pollack, Newark, on the brief).

Herbert D. Hinkle, Deputy Public Advocate for amicus curiae Public Advocate (Stanley C. Van Ness, Public Advocate, attorney).

Joseph T. Maloney, Deputy Atty. Gen., for defendants-appellants and cross-respondents State of N.J. and Ann Klein and for defendants-respondents State of New Jersey Dept. of Institutions and Agencies and North Jersey Training School (John J. Degnan, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel).

Donald L. Berlin, Morristown, for defendants-appellants and cross-respondents County of Morris and Helen Brooks (Lieb, Berlin & Kaplan, Morristown, attorneys).

Kathryn A. Brock, Summit, submitted a brief on behalf of amicus curiae New Jersey Ass'n for Retarded Citizens, Inc.

The opinion of the Court was delivered by

HANDLER, J.

Plaintiffs in these cases are the parents of two profoundly retarded, school-age children who reside in State institutions for the mentally retarded. These parents are responsible by statute for the costs of institutional care and maintenance provided to their individual children based upon financial ability to pay except as reduced by a small credit attributable to certain specific educational expenses. Plaintiffs contend that this credit is insufficient to cover all educational expenses actually incurred and that, notwithstanding their financial ability to pay, any charges to them for educational services provided to their children are forbidden by the "thorough and efficient" education clause of the New Jersey Constitution guaranteeing a free education to all school-age children. Plaintiffs also assert that their state and federal constitutional rights to equal protection of the laws have been violated because parents with similarly mentally retarded children able to live at home receive from the State comparable educational benefits entirely free of charge. It is further argued that they are entitled to relief under federal legislation dealing with physically and mentally disabled children, which legislation now arguably requires a state to accept full financial responsibility for the total educational expenses associated with the institutional care provided to any such children.

In the Guempel case, the trial court rejected the claims of the plaintiff-parent based upon the State Constitution's education clause as well as his claims, under various federal statutes. 159 N.J.Super. 166, 387 A.2d 399 (Law Div.1978). The court did find, however, that plaintiff was entitled on state and federal equal protection grounds to an educational credit equal in amount to the average per capita cost of educational benefits provided to noninstitutionalized mentally retarded children. Id. at 191-193, 387 A.2d 399. While on appeal to the Appellate Division, the case was directly certified by this Court pursuant to R. 2:12-1. 81 N.J. 279, 405 A.2d 824 (1979). The Levine case was disposed of below on summary judgment in favor of the defendants which judgment was affirmed by the Appellate Division. 160 N.J.Super. 591, 390 A.2d 699 (App.Div.1978). We granted plaintiffs' petition for certification and that case was joined with Guempel for oral argument. 81 N.J. 270, 405 A.2d 814 (1979). The New Jersey Public Advocate and the New Jersey Association for Retarded Citizens, Inc. participated as amici curiae in this joint appeal.

I

It is important in this case to be mindful of what is not at issue. There is no contention made in this litigation that the quality of the residential care provided to Linda Guempel or Maxwell Levine is inadequate or that the educational services available to them are not on a par with those afforded to similarly disabled, but noninstitutionalized, children. Nor does this case present the question of whether parents without sufficient financial means to pay the institutional and related educational costs for the care of their children can nonetheless be required to do so. See N.J.S.A. 30:4-24(7). Rather, what is directly at issue is whether parents who do not otherwise question their moral or legal obligations to support their children and who are fully capable of paying their support can on constitutional grounds be relieved of the costs associated with their total residential care.

For reasons which are fully set forth in this opinion, we conclude on this central issue that such parents with the financial ability fully to support their children are not constitutionally entitled to require the public to assume this obligation. In reaching this conclusion, we recognize that there remain alternative non-constitutional grounds which provide opportunities for further relief under applicable statutory and administrative provisions governing the costs of educational services furnished to institutionalized school-age children.

A

An understanding of the issues presented in this appeal must commence with a full appreciation of the tragic afflictions of each of the two children involved. Linda Guempel is a 19-year-old retarded woman who is a resident at Hunterdon State School in Clinton. According to the testimony of her father, Linda began experiencing mild seizures when she was one year old. A specialist, upon examining the infant, determined that she was mentally retarded. For a short time thereafter Linda remained at home, but, eventually her abnormal behavior and inability to be trained had adverse effects upon her family and resulted in her placement in 1965 in a residential school for the mentally impaired in Middletown, Delaware.

Linda remained at this school for five years; despite some achievements in toilet training, feeding, dressing, and rudimentary play, however, Linda's continued hyperactive and self-destructive behavior caused the school to require her withdrawal. She was then admitted to the Hunterdon State School in October 1969. At that time her IQ was estimated to be between 20 and 35; but upon a reevaluation in 1972, she was found to be profoundly retarded based on estimated cognitive functioning (IQ (Slosson) 14, Mental Age: 1 year 8 mos.) and adaptive behavior (Vineland Social Maturity Scale, Social Age: 1 year 8 mos.). A further reevaluation in 1977 showed little, if any, change in Linda's condition since 1972.

At the Hunterdon State School, the approximately 1000 residents are divided among 18 residential cottages segregated by sex and, to some extent, by degree of impairment. As does Linda, all of the residents of her particular cottage exhibit severe behavioral problems. Linda spends the major portion of her time in this cottage and in an adjacent play area. Her participation in the school's curriculum is in a program of the lowest or most basic level that emphasizes development of body awareness, sensorimotor skills and rudimentary self-care skills such as eating, toileting, grooming and dressing. The director of the school's Adaptive Learning Center explained that a large part of that curriculum is similar to that ordinarily undertaken in nursery school or kindergarten.

Maxwell Levine is even more gravely impaired than is Linda Guempel. Maxwell, a ten-year-old crib-confined child, was found in early infancy to have a "diffuse static encephalopathy relating to . . . perinatal¹ difficulties . . . associated with significant brain damage." When Maxwell was slightly more than one year old, a physician noted that he remained in "a frog position" with his hands clenched and that he exhibited no control over head movements.

In January 1974 Maxwell was admitted to the nursery unit of the North Jersey Training School at Totowa, a public institution for all levels of mentally retarded persons over five years of age. Maxwell was examined upon his admission by the school's director of pediatrics, who diagnosed the child's condition as "(c)erebral (e)ncephalopathy (s)evere (d)ue to cerebral anoxia" and noted that "this is a severely brain(-)damaged boy who shows no evidence of any type of awareness or development . . . (and who) will always be a permanent crib case (needing) complete care." A clinical psychologist also examined Maxwell at that time and classified him as profoundly retarded with an estimated IQ of 1. Shortly after his admission, the school's Classification Committee similarly characterized Maxwell's condition as profound mental retardation with an estimated IQ of 1, motor development at the one-month-old level, no vocalization or language skills, and an extremely low adaptive behavior rating. As of March 1979, according to reports made by the school's various service departments, Maxwell had made certain advances despite never having been scheduled as of that time for regular programming. The reports noted, for example, "that he does make sounds, follow objects, and responds to noise"; that while he "demonstrates pleasure" in response to movement, familiar faces and voices "by smiling and moving his head toward the stimulation, he is unable to follow through and complete any movement or activity...