New Jersey Div. of Youth and Family Services v. D.C.

• Decision Date: 05 April 1990
• Citation: 118 N.J. 388,571 A.2d 1295
• Parties: NEW JERSEY DIVISION OF YOUTH and FAMILY SERVICES, Plaintiff, v. D.C. and M.C., Defendants, (In the Interest of Joel C. Rinsky, Esq., and Janet B. Romano, Esq.), Applicants-Appellants, and In the Matter of C. MINORS, Minors. (In the Interest of J. Patrick Roche, Esq.), Applicant-Appellant.
• Court: New Jersey Supreme Court

Page 388

118 N.J. 388

571 A.2d 1295

NEW JERSEY DIVISION OF YOUTH and FAMILY SERVICES, Plaintiff, v. D.C. and M.C., Defendants (In the Interest of Joel C. Rinsky, Esq., and Janet B Romano, Esq.), Applicants-Appellants and In the Matter of C. MINORS, Minors (In the Interest of J. Patrick Roche, Esq.), Applicant-Appellant.

Supreme Court of New Jersey.

Argued Sept. 26, 1988.

Decided April 5, 1990.

Joel C. Rinsky, Livingston, for applicants-appellants.

Thomas P. Hartley, Asst. Deputy Public Defender, for respondent, Office of the Public Defender, Law Guardian Program (Alfred A. Slocum, Jr., Public Defender, attorney).

Barbara A. Harned, Deputy Atty. Gen., for respondent, Dept. of Law and Public Safety (Cary Edwards, Atty. Gen., attorney; Andrea M. Silkowitz, Asst. Atty. Gen., of counsel).

Mark H. Sobel, for amicus curiae, New Jersey State Bar Ass'n (Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Iselin, attorneys).

PER CURIAM.

This appeal poses the issue of compensation for attorneys appointed to represent indigent parents and their minor children in actions by the Division of Youth and Family Services (DYFS) for termination of parental rights under N.J.S.A. 30:4C-11 to -24. Appellants ask us to determine that the fees for their services as appointed counsel in a Title 30 case are compensable and legally payable. The two terms have different implications. The fees are "compensable" if appellants have the substantive right to be paid. They are "legally payable," however, only if the legislature has appropriated funds to pay appointed attorneys in Title 30 actions or if this Court has the constitutional authority to compel the State to pay them. See Amantia v. Cantwell, 89 N.J.Super. 7, 213 A.2d 251 (App.Div.1965).

I

In 1975 DYFS filed a protective-services complaint under N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12 against D.C. and M.C., the parents of three minors. DYFS alleged child abuse and neglect, but did not seek termination of parental rights. The Office of the Public Defender appointed pool attorneys to represent D.C. and M.C., and named a public defender to represent the children. After convicting D.C. for abuse and M.C. for neglect, the Juvenile and Domestic Relations Court conditionally released the children to M.C.

The court reviewed the case periodically. Under the terms of Title 9, D.C. and M.C. received the assistance of paid counsel to litigate visitation issues. On several occasions the court placed the children outside the home. In 1983 DYFS filed a separate suit under N.J.S.A. 30:4C-15 against D.C. and M.C. to terminate their parental rights. Pursuant to Rule 5:3-4(a), the trial court appointed appellants Joel C. Rinsky and Janet B. Romano to represent D.C. and M.C. The court also named appellant J. Patrick Roche to represent the three children.

After eighteen days of bench trial, the trial court terminated the parental rights of D.C. and M.C. in respect of one child, who was then committed to the guardianship of DYFS. The trial court did not terminate the parental rights as to the other two children. The court ordered DYFS to maintain temporary legal and physical custody over one of them. The third was to remain in the legal custody of DYFS but in the physical custody of his parents. No one appealed that judgment.

Appellants moved to compel the Public Advocate or Attorney General to pay their fees. Finding no source of funds available for that purpose, the trial court denied the motion. The Appellate Division vacated the order and remanded, with instructions to the trial court to distinguish between services that are statutorily compensable and payable and those that are compensable but not payable. The Appellate Division denied the Attorney General's motion for reconsideration.

The trial court thereupon ordered the Attorney General and the Public Advocate to show cause why the appellants should not be compensated. After the parties had filed certifications in lieu of testimony, the trial court determined that a law guardian in a Title 30 action has duties similar to those of an attorney in a Title 9 action. Because Title 9 lawyers are paid, the trial court believed that Title 30 attorneys should also be compensated. It held, however, that it could not order payment of the fees in the absence of funds authorized by the legislature for that purpose.

On the attorneys' appeal the Appellate Division held that the fees are neither compensable nor payable. 219 N.J.Super. 644, 663, 530 A.2d 1309 (1987). The court did not believe that the similarities between the duties of Title 9 and Title 30 attorneys override the distinction made by the legislature between these statutory schemes. The Appellate Division concluded that without statutory authorization, it could not conclude that the fees were compensable and payable.

We granted certification to review that determination. 110 N.J. 312, 540 A.2d 1289 (1988). Appellants and amicus curiae, New Jersey State Bar Association, make three arguments for payment: it is statutorily authorized; it is required by State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966); and it is constitutionally compelled.

II

A.

We first consider whether the legislature has provided for the payment of appointed attorneys in parental-rights-termination cases. N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-11 to -24 both deal with parent-child relationships. Title 9, chapter 6, provides temporary remedies for child-abuse problems. DYFS, among others, can file a complaint alleging that a child has been abused or neglected. N.J.S.A. 9:6-8.33 and -8.34. Pursuant to a finding of abuse or neglect, a "court may place the child in the custody of a relative or other suitable person or [DYFS]." N.J.S.A. 9:6-8.54a. The initial placement can be for a period of eighteen months, which the court can extend for one-year periods. N.J.S.A. 9:6-8.54b.

Similarly, N.J.S.A. 30:4C-12 allows the Bureau of Childrens [sic] Services (now DYFS) to seek temporary custody of a child. That provision authorizes DYFS to investigate a wide range of allegations against parents and other custodians and to file suit for the care and supervision of the child. The statute provides for a "best interests" adjudication granting DYFS care and supervision for six months. After further hearings the court can extend that period.

N.J.S.A. 30:4C-15 to -24 differs from both N.J.S.A. 30:4C-12 and N.J.S.A. 9:6-8.21 to -8.73 in that it provides for a permanent remedy: termination of parental rights and placement of the child under the guardianship of DYFS. Whereas temporary remedies deprive parents of custody only, leaving the extent of parental visitation for further adjudication, a successful guardianship action under N.J.S.A. 30:4C-15 to -24 necessarily entails a cessation of visitation. That path leads to freeing the child for adoption. N.J.S.A. 30:4C-20. Title 30 does not provide for counsel for indigent parties. Nevertheless, "[s]imple justice" dictates that parents have a right to representation in such cases. Crist v. New Jersey Div. of Youth & Family Serv., 135 N.J.Super. 573, 575, 343 A.2d 815 (App.Div.1975).

The focus of the instant controversy is the absence of any provision in Title 30, chapter 4C, authorizing public payment of appointed counsel. That omission contrasts with the provisions for compensated legal representation for both the parents and the child in actions filed under Title 9, chapter 6. N.J.S.A. 9:6-8.43a provides that indigent parents may apply for an attorney through the Department of the Public Advocate. N.J.S.A. 9:6-8.23a requires the appointment of a law guardian to represent a minor in a Title 9, chapter 6, action.

B.

Absent a contract with the client, a court generally cannot award a fee to an attorney unless authorized by statute or Rule of Court. Klacik v. Kovacs, 111 N.J.Super. 307, 311-12, 268 A.2d 305 (App.Div.1970); Cohen v. Fair Lawn Dairies, 86 N.J.Super. 206, 212, 206 A.2d 585 (App.Div.), aff'd, 44 N.J. 450, 210 A.2d 73 (1965); R. 4:42-9(a). The court in Crist determined that without a Court Rule or statute authorizing payment of counsel, appointed attorneys in Title 30 actions would have to provide their services free of charge. 135 N.J.Super. at 575, 343 A.2d 815.

Appellants intertwine Title 30 and Title 9 actions in an attempt to find statutory authorization for attorneys' fees. They contend that because DYFS could have brought the underlying case pursuant to Title 9 rather than Title 30, compensation is warranted. DYFS, however, could not have initiated the suit under N.J.S.A. 9:6-8.21 to -8.73 because none of those sections provides for the termination of parental rights. Nor could DYFS have brought the action pursuant to N.J.S.A. 9:2-18, which allows "approved agenc[ies]" to seek termination of parental rights. DYFS is not an "approved agency" as defined in N.J.S.A. 9:2-13(a), but rather a "supervisory arm of the State * * *." In re Adoption of Two Children by A.M. and L.M., 170 N.J.Super. 320, 331, 406 A.2d 468 (App.Div.1979); In re Guardianship of R.G. and M.G., 106 N.J.Super. 262, 264, 255 A.2d 284 (App.Div.1969). In seeking to terminate the parental rights of D.C. and M.C., DYFS could act only under N.J.S.A. 30:4C-15. We agree with the Appellate Division that appellants' argument that DYFS arbitrarily proceeded under Title 30 to avoid compensating the appellants is "utterly without merit." 219 N.J.Super. at 657, 530 A.2d 1309.

Appellants also argue that because Title 30 actions often involve visitation questions, the legal services provided are analogous to those under Title 9 and therefore should similarly be compensated. But as the court below observed, "[t]he existence of visitation issues cannot obscure the fact that the action was instituted under [Title 30] to terminate parental rights." 219 N.J.Super. at 657, 530 A.2d 1309. According to the Attorney General, Title 9 proceedings can go on for years. Title 30 actions, on the other hand,...