New Jersey Div. of Youth and Family Services v. E.B.

• Decision Date: 24 May 1994
• Citation: 644 A.2d 1093,137 N.J. 180
• Parties: NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.B. and D.W., Defendants. In the Matter of R.J.B., A Minor.
• Court: New Jersey Supreme Court

Page 180

137 N.J. 180

644 A.2d 1093

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. E.B. and D.W., Defendants In the Matter of R.J.B., A Minor.

Supreme Court of New Jersey.

Argued Jan. 19, 1994.

Decided May 24, 1994.

Dale Jones, Asst. Public Defender, for appellant Office of the Law Guardian Program (Zulima V. Farber, Public Defender, attorney).

Elizabeth Szabo, Staff Atty., for respondent Somerset Sussex Legal Services (Diane K. Smith, Executive Director of Somerset Sussex Legal Services, attorney).

Mary Jane Lembo-Cullen, Deputy Atty. Gen., for respondent New Jersey Div. of Youth and Family Services (Deborah T. Poritz, Atty. Gen., attorney, Joseph L. Yannotti, Asst. Atty. Gen., of counsel).

Nancy Goldhill, Edison, for amicus curiae Legal Services of New Jersey (Melville D. Miller, Jr., President, attorney).

The opinion of the Court was delivered by

O'HERN, J.

This appeal concerns a dispute among agencies of government and a public-interest law firm about who should pay for the services of an expert witness required by an indigent defendant in a child-custody action instituted by the Division of Youth and Family Services (DYFS) in the Department of Human Services. The parties before us are Somerset Sussex Legal Services (Legal Services), which represented the indigent defendant, E.B., at trial; the Office of the Public Defender (OPD), which represented the infant, R.J.B., as Law Guardian, at trial; and DYFS. In the related case of In re Guardianship of G.S., 137 N.J. 168, 644 A.2d 1088 also decided today, we resolve the question of which government agency should pay for transcripts needed by an indigent to appeal the termination of parental rights. In this case, we affirm the Appellate Division's allocation of payment of the remaining balance of the expert witness's fee between Legal Services and OPD. Were we writing on a clean slate here, we would not approve of the requirement that Legal Services pay half of the fee. During oral argument, counsel for OPD acknowledged that under the principles of In re Cannady, 126 N.J. 486, 600 A.2d 459 (1991), discussed infra at 186-87, 644 A.2d at 1096-97, OPD should be responsible for these ancillary services. We appreciate counsel's candor. We shall require that OPD pay the costs of such ancillary services in future cases within its jurisdiction, even when the indigent is represented by private or public-interest counsel, subject to OPD's evaluation of the reasonableness and need for the services.

I

On December 7, 1990, DYFS filed a protective-services complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73 (Title 9), N.J.S.A. 30:4C-12, and Rules 5:12-1 to -5. DYFS sought temporary custody of E.B.'s two-day-old son, R.J.B., because it feared potential child abuse and neglect. E.B., who had a lengthy mental-health history, had attempted suicide several times. In addition, on December 11, 1990, a doctor diagnosed E.B. as suffering from a borderline personality disorder that frequently caused her to be impulsive, unstable, and moody, to exercise poor judgment, and to be unable to maintain appropriate control of her anger. At the time of R.J.B.'s birth, E.B. lived with D.W. Because of their relationship, DYFS amended the complaint to include him as a defendant.

A.L., the child's biological father, voluntarily relinquished his parental rights. E.B. refused the request of DYFS to place voluntarily her newborn infant into foster care. She obtained representation from Legal Services. D.W. appeared pro se before the court.

DYFS requested that the parental custodians, E.B. and D.W., undergo psychological evaluations prior to the scheduled Title 9 child-abuse and neglect hearing. DYFS offered to pay for the psychological evaluation if it were conducted by Psychological Associates, Inc., a company with which it had contracted to perform such services. Fearing that bias would influence psychological evaluations rendered by a company under contract to and perhaps controlled by DYFS, Legal Services requested that the trial court appoint an independent expert. That court exercised its discretion to appoint an expert other than Psychological Associates, Inc. That expert's $1500 fee was more than twice the fee normally charged by the psychologists whom DYFS usually used. DYFS agreed to pay the $700 that it would normally pay. This dispute concerns the $800 balance.

The trial court held that Legal Services must pay the balance. Legal Services appealed, arguing that N.J.S.A. 9:6-8.43 mandates that OPD pay for all required experts for indigent defendants in Title 9 child-abuse and neglect actions, even if the indigent is represented by private counsel other than those assigned by OPD.

The Appellate Division held that "the Public Defender is responsible for the reasonable and necessary expenses incurred for the use of expert witnesses in [Title 9] proceedings * * *, even though the parent is represented by an attorney not employed or retained by the Public Defender." 264 N.J.Super. 1, 7-8, 623 A.2d 1379 (1993) (footnote omitted). It also held that the trial court had properly exercised its discretion under Rule 5:3-3(a) in requiring Legal Services to contribute to the cost of the expert, but the Appellate Division modified the trial court's order to provide that OPD and Legal Services each contribute $400 toward the balance due the expert. Id. at 8-10, 623 A.2d 1379. We granted OPD's petition for certification, 134 N.J. 479, 634 A.2d 526 (1993).

II

DYFS's statutory mission is to protect the health and welfare of the children of this state. N.J.S.A. 30:4C-4. It does so under two statutory mandates. The first is set forth in N.J.S.A. 9:6-8.21 to - and is collectively known as Title 9, and the second is set forth in N.J.S.A. 30:4C-1 to -40, known as Title 30.

Title 9 covers the adjudication of child-abuse and neglect cases. If abuse or neglect of a child is discovered, N.J.S.A. 9:6-8.54 authorizes the court to place the child in a safe haven for an initial period not to exceed eighteen months. Subsequently, on confirmation of such child abuse and neglect, N.J.S.A. 9:2-18 permits approved agencies to file a complaint in the Superior Court seeking to terminate parental rights pursuant to Title 30. N.J.S.A. 30:4C-12 empowers DYFS not only to receive and investigate complaints of child abuse or neglect but also, if necessary, to apply for temporary custody of such children. Under Title 30, DYFS may seek to take children from their parents permanently, terminate the parents' parental rights, and arrange for the adoption or permanent placement of the children. In a recent series of cases, we have explained the scope of DYFS's jurisdiction in that area and the requirements that must be met before termination of parental rights. In re Guardianship of K.L.F., 129 N.J. 32, 608 A.2d 1327 (1992); In re Guardianship of J.C., 129 N.J. 1, 608 A.2d 1312 (1992); New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 512 A.2d 438 (1986).

The overlapping of Titles 9 and 30 causes occasional misunderstanding. For example, in a pending child-abuse and neglect case (New Jersey Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 643 A.2d 987 (1994) (in which we have entered an order of disposition)), DYFS proceeded with a Title 30 parental-rights-termination case while a Title 9 child-abuse and neglect case was awaiting appeal. Such overlapping often occurs when child abuse or neglect is involved in Title 30 parental-rights-termination cases. On the other hand, termination of parental rights can occur without child abuse and neglect. Because Title 9 provides compensation for legal representation of indigents and Title 30 does not, courts must be concerned with which of the two titles applies or was used to pursue a particular goal. See New Jersey Div. of Youth & Family Servs. v. D.C., 118 N.J. 388, 571 A.2d 1295 (1990) (holding that lawyers appointed to represent indigent defendants in Title 30 actions are not entitled to compensation, although in actions brought under Title 9 OPD must provide representation to indigent defendants). The reason for that different statutory treatment is not all that clear; the difference itself, however, is.

III

Courts have long recognized that parents charged with abuse or neglect of their children have a constitutional right to counsel. See, e.g., Crist v. New Jersey Div. of Youth & Family Servs., 135 N.J.Super. 573, 576 n. 2, 343 A.2d 815 (App.Div.1975); see also N.J.S.A. 9:6-8.23 (mandating that in child-abuse and neglect proceedings, court will appoint law guardian to provide representation to minor who is subject of such abuse or neglect and that other interested parties are not precluded from representation by counsel). Title 9 acknowledges that right in child-abuse and neglect actions by providing defense counsel through OPD.

The Legislature created OPD on July 1, 1967, to provide representation to indigent defendants in criminal cases. See N.J.S.A. 2A:158A-1 to -25. In 1974, the Legislature established the Department of the Public Advocate (Public Advocate). See N.J.S.A. 52:27E-1 to -47. The Legislature allocated the duties and responsibilities of OPD to the Public Advocate. N.J.S.A. 52:27E-9. N.J.S.A. 9:6-8.43 provides that indigent parents or guardians may apply to the Public Advocate for attorneys to represent them at Title 9 proceedings. N.J.S.A. 9:6-8.71 directs that the Legislature appropriate funds to implement the provisions of Title 9, including funds to compensate counsel who appear on behalf of indigents in those actions. See D.C., supra, 118 N.J. at 398, 571 A.2d 1295.

Under the mandate, OPD is to provide and to pay for the legal representation and the necessary and related ancillary services for a qualified indigent. In some cases OPD may be representing the child or children involved, thus requiring the provision of outside counsel for the parents. The parents' interests too, may conflict, requiring...