SYLLABUS
(This syllabus is not part of the opinion of the Court. It has
been prepared by the Office of the Clerk for the convenience of the
reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not
have been summarized).
Argued March 17, 2003 -- Decided May 8, 2003
PER CURIAM
In this appeal, which involves the privately initiated adoption of a minor over the objection of an indigent natural parent, the Court determines who should bear the cost of providing a transcript to enable the indigent parent to pursue her right to appellate review.
Over her objection, and after a hearing, the trial court entered an order
terminating the parental rights of M.J., the indigent natural parent of A.N.J., and
entered a judgment of adoption in favor of the plaintiffs, the child’s parental
grandparents. Because M.J. objected to the proposed adoption and because her parental rights
had not before been terminated by any State-initiated action, a hearing pursuant to
N.J.S.A. 9:3-46 was required. Camden Regional Legal Services represented M.J. at the hearing.
M.J. appealed the trial court’s ruling and applied for a transcript to
be provided at public expense based on indigence. The Office of the Public
Defender (OPD) contested any responsibility for providing a free transcript of a proceeding
in which it had not participated. The Appellate Division had entered an order
directing the OPD to pay for the transcript because the case involved “in
effect, a termination order.” On reconsideration, the Appellate Division reconfirmed its order, noting
the congruency of the findings required to be made by the trial court
with the termination findings required pursuant to N.J.S.A. 9:6.
The Supreme Court granted the OPD’s motion for leave to appeal.
HELD : In those instances when it is not appropriate to shift the cost
of a transcript on appeal to a plaintiff in an involuntary private adoption
action, the Office of the Public Defender’s duty to an indigent person confronted
with the loss of parental rights by operation of N.J.S.A. 9:3-46 shall include
the duty to pay for a transcript on appeal even when that office
has not participated in the involuntary adoption proceeding.
1. Since 1976, the New Jersey Supreme Court has recognized that an indigent
parent appealing the termination of parental rights has a right to have trial
transcripts provided at public expense when necessary for purposes of appeal. But that
right is not automatic and is subject to various mechanisms to reduce the
public expenditure. (pp. 3-5)
2. There is no basis to distinguish OPD’s responsibility in this setting where
a private party, by virtue of State legislative authorization, initiated the severing of
parental rights for reasons congruent to the type of findings required in a
Title 9 termination action in which the OPD is responsible for representation and
(even when a public interest law firm undertakes that representation) for the ancillary
expenses necessary to that representation. (pp. 5-6)
3. In those instances in which it is not appropriate to shift the
cost of a transcript on appeal to a plaintiff in an involuntary private
adoption action, the OPD’s duty to an indigent parent confronted with the loss
of parental rights by operation of N.J.S.A. 9:3-46 shall include the duty to
pay for a transcript on appeal. Courts, however, are encouraged to restrict the
required portions of a transcript to the minimum necessary for appellate review, thereby
minimizing public expense. (pp. 6-7)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join
in this opinion. JUSTICE ALBIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
74 September Term 2001
IN THE MATTER OF ADOPTION
OF A CHILD BY J.D.S., II,
AND C.S.
Argued March 17, 2003 – Decided May 8, 2003
On appeal from the Superior Court, Appellate Division.
Ruth Bove Carlucci, Assistant Deputy Public Defender, argued the cause for appellant, Office
of the Public Defender (Yvonne Smith Segars, Public Defender, attorney).
Carol E. Swanson argued the cause for respondent, M.J. (Larry D. DeCosta, Director,
Camden Regional Legal Services, Inc., attorney).
Nancy Goldhill argued the cause for amicus curiae, Legal Services of New Jersey
(Melville D. Miller, Jr., President, attorney).
PER CURIAM
This appeal involves the privately initiated adoption of a minor over the objection
of an indigent natural parent. Following a hearing, the trial court ordered the
termination of the indigent mother’s parental rights and entered a judgment of adoption
in favor of plaintiffs, the child’s paternal grandparents. The sole question to be
addressed is who should be responsible for the cost of providing a transcript
to enable an indigent parent in these circumstances to pursue her right to
appellate review.
The facts supporting the termination of M.J.’s parental rights concerning her daughter, A.N.J.,
are not pertinent to the narrow issue before us. It is the procedure
by which they were terminated that is important. M.J. objected to the adoption.
Because her parental rights had not been terminated previously by any State-initiated action,
a hearing pursuant to N.J.S.A. 9:3-46 was required. Camden Regional Legal Services (Legal
Services) represented M.J. At the conclusion of the hearing, the trial court found
that M.J. had failed substantially to perform the regular and expected parental functions
of care and support of the child.
M.J. appealed and applied for a transcript to be provided at public expense
based on indigence.
See footnote 1
The record reveals that the Office of the Public Defender
(OPD) contested any responsibility for providing a free transcript of a proceeding in
which it had not participated. The Appellate Division had entered an order directing
the OPD to pay for the transcript because the case involved "in effect,
a termination order." On reconsideration, the Appellate Division reconfirmed its order, stating that
"this contested adoption required the judge to make findings pursuant to N.J.S.A. 9:3-46.
Because of the congruency of said findings with required termination findings pursuant to
N.J.S.A. 9:6, the court remains satisfied that it is the obligation of the
[OPD] to pay for the transcript." We affirm.
Since 1976, this Court has recognized that an indigent parent appealing the termination
of parental rights has a right to have trial transcripts provided at public
expense when necessary for purposes of appeal because "ordinarily [a] transcript is an
integral part of the record on appeal." In re Guardianship of Dotson,
72 N.J. 112, 116, 118-19 (1976). The right is not automatic and is subject
to various mechanisms, available by Court Rule, which would reduce the public expenditure.
Id. at 118-19; see also In re Guardianship of G.S.,
137 N.J. 168,
171-72 (1994) (describing alternative procedures for providing "truncated" record for appellate review).
In Dotson, the Division of Youth and Family Services (DYFS) was held responsible
for the cost of providing a trial transcript in connection with an indigent
parent's appeal. Later, the respective responsibilities of OPD, DYFS, and a public interest
law firm were addressed in the companion cases of In re Guardianship of
G.S., supra,
137 N.J. 168, and New Jersey Division of Youth & Family
Services v. E.B.,
137 N.J. 180 (1994). In G.S., as in Dotson, DYFS
was held responsible for the cost of appellate transcripts in an indigent parent's
appeal of the termination of parental rights initiated pursuant to Title 30 and
under which the OPD was not mandated to provide a defense. In re
Guardianship of G.S., supra, 137 N.J. at 179. E.B. involved a Title 9
abuse-and-neglect child-custody action. 137 N.J. at 183. Under that statutory scheme, OPD has
been given the responsibility for the provision of representation to indigent parents. Id.
at 186-87 (citing N.J.S.A. 9:6-8.43). Accordingly, we held that OPD's duty to represent
indigent parents encompassed the responsibility to pay for the ancillary cost of an
expert necessary to the representation, notwithstanding that the representation actually was undertaken by
a public interest law firm. Id. at 188.
In G.S. and E.B., the respective legislative programs rendered it apparent which State
agency was expected to bear certain costs associated with the legal action involved.
Our holdings clarified that the financial responsibility statutorily imposed included additional implied obligations.
It was beyond cavil in each that the indigent parent, from whom parental
rights were being wrested through a State-initiated action, was entitled to the disputed
service—be it a trial expert or a transcript for purposes of appeal—at public
expense.
So too, it is beyond dispute here that M.J., an indigent whose parental
rights are being terminated pursuant to a statutorily authorized, involuntary process, is entitled
to a free transcript for purposes of appeal. See In re Guardianship of
Dotson, supra, 72 N.J. at 118-19. That said, it is no leap to
conclude that as a matter of last resort it is a State responsibility
to provide a transcript to the indigent parent whose rights are being terminated
by state-authorized action under N.J.S.A. 9:3-46. We see no basis for shifting that
duty to Legal Services merely because it undertook to represent M.J. The limited
resources available to Legal Services render it unable also to shoulder the responsibility
for appellate transcripts in involuntary adoptions implicating termination of parental rights.
As part of the Title 9 scheme, termination of parental rights under N.J.S.A.
9:3-46 is a component of the State’s overall and coordinated system of child
protection and supervision. Cf. In re Minehan,
130 N.J. Super. 298, 304 (Union
County Ct. 1974) (holding State’s multifaceted involvement in civil commitment of mentally ill
rendered it most appropriate to provide for publicly funded transcript, notwithstanding county's prosecution
of commitment proceeding). It follows that the cost of providing an indigent parent
with a transcript for purposes of appeal from a termination of rights under
N.J.S.A. 9:3-46 may be viewed as a public responsibility. Absent some greater specificity
by the Legislature concerning its allocation of this responsibility, we are satisfied with
the resolution imposed by the Appellate Division. The proceeding below involved findings that
mimicked those ordinarily required in a Title 9 termination of parental rights. In
a termination action based on Title 9 findings of abuse or neglect, the
OPD is responsible for representation and, even when a public interest law firm
undertakes that representation, for the ancillary expenses necessary to that representation. E.B., supra,
137 N.J. at 188. We see no basis for distinguishing OPD’s responsibility in
this setting where, by virtue of State legislative authorization, a private party initiated
the severing of parental rights for reasons congruent to the type of findings
required in a Title 9 termination action.
Accordingly, we hold that in those instances when it is not appropriate to
shift the cost of a transcript on appeal to a plaintiff in an
involuntary private adoption action, the OPD's duty to an indigent parent confronted with
the loss of parental rights by operation of N.J.S.A. 9:3-46 shall include the
duty to pay for a transcript on appeal. In view of that holding,
the question of who pays shall no longer delay appellate review. That said,
we encourage courts to restrict the required portions of a transcript to the
minimum necessary for that review, thereby minimizing the impact on the public fisc.
See R. 2:5-3(c).
The order of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LONG, VERNIERO, LaVECCHIA, and ZAZZALI join in
this opinion. JUSTICE ALBIN did not participate.
SUPREME COURT OF NEW JERSEY
NO. A-74 SEPTEMBER TERM 2001
ON APPEAL FROM Appellate Division, Superior Court
IN THE MATTER OF ADOPTION
OF A CHILD BY J.D.S., II,
AND C.S.
DECIDED May 8, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
We have been informed that the cost of this litigation has required
plaintiffs to file for bankruptcy. The Appellate Division apparently was unable to consider
them as a possible source of payment for the transcript under N.J.S.A. 9:3-53
(requiring plaintiff in private adoption to bear costs of proceeding). Cf. In re
Adoption of a Child by H.C. and W.C.,
284 N.J. Super. 202, 206
(Ch. Div. 1994) (ordering prospective parents who brought adoption action to reimburse natural
mother for reasonable expert fees and deposition expenses pursuant to N.J.S.A. 9:3-53).