(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 January 19, 1994 -- Decided May 24, 1994
O'HERN, J., writing for a unanimous Court.
On December 7, 1990, the Division of Youth and Family Services (DYFS) filed a protective-services
complaint seeking temporary custody of E.B.'s two-day-old son, R.J.B., because of DYFS's concern of potential
child abuse and neglect by E.B. E.B. had a lengthy mental-health history and had attempted suicide several
times. In addition, on December 11, 1990, E.B. was diagnosed 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 that relationship, DYFS amended its complaint to include D.W. as a defendant.
A.L., the child's biological father, voluntarily terminated his parental rights to R.J.B. E.B. refused
DYFS's request to place R.J.B. into foster care. E.B. sought and obtained representation from the
Somerset/Sussex Legal Services (Legal Services). D.W. appeared on his own behalf.
DYFS requested that E.B. and D.W. undergo psychological evaluations prior to the scheduled child
abuse and neglect hearing under Title 9, N.J.S.A. 9:6-8.21 to 8.73. DYFS offered to pay for the psychological
evaluation if it were conducted by Psychological Associates, Inc., a company that DYFS had contracted with
to perform those services. Legal Services believed that bias might influence psychological evaluations
rendered by Psychological Associates because the company was under contract with, and was possibly
controlled by, DYFS. Legal Services asked the trial court to appoint an independent expert and the court, in
the exercise of its discretion, complied. That expert's $1,500 fee was more than twice the fee customarily
charged by psychologists whom DYFS usually retained. Therefore, DYFS agreed to pay only the $700 that it
would normally pay. The trial court held that Legal Services must pay the $800 balance.
Legal Services appealed the trial court's order, arguing that Title 9 mandates that the Office of the
Public Defender (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 OPD is responsible for the reasonable and necessary expenses incurred for
the use of expert witnesses in Title 9 proceedings even though the party is represented by an attorney not
employed or retained by the OPD. The court found that the trial court had properly exercised its discretion
requiring Legal Services to contribute to the cost of the expert. However, the Appellate Division did modify
the trial court's order to provide that OPD and Legal Services each contribute $400 towards the balance due
the expert.
The Supreme Court granted certification.
HELD: In actions brought under Title 9 child-abuse and neglect cases, the Office of the Public Defender
must pay the costs of ancillary services in cases that OPD is statutorily mandated to defend, 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.
1. Child-abuse and neglect cases are covered by Title 9. Once child abuse and neglect have been confirmed, Title 9 permits approved agencies to file a complaint in the Superior Court to terminate parental rights pursuant to Title 30. 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. Title 9 and Title 30 overlap occasionally, which can result in some confusion. Because Title 9
provides compensation for legal representation of indigents and Title 30 does not, courts must look to which
of the two statutes applies in a given case. (pp. 5-7)
2. Parents charged with abuse and neglect of their children have the constitutional right to counsel.
Under Title 9, defense counsel is provided through OPD. The Legislature is directed to appropriate funds to
implement provisions of Title 9, including funds to compensate counsel who appear on behalf of indigents.
Under the legislative mandate, OPD is to provide and to pay for the legal representation and the necessary
and related ancillary services for a qualified indigent. In In re Cannady, this Court held that the statutory
requirement that OPD provide all qualified indigents with legal representation included payment of expert
fees even when the indigent was not represented by an OPD attorney. Cannady's interpretation extends to
indigent defendants in Title 9 actions. Thus, even if a qualified indigent defendant is represented by private
counsel, the Public Defender Act obligates OPD to fund the reasonable ancillary services necessary to
provide an effective legal representation subject to the Cannady requirements. (pp. 7-9)
3. While OPD is required to provide ancillary services to indigents in need of such services in Title 9
child-abuse and neglect cases, that principle is not extended to Title 30 parental-rights-termination
proceedings. In Title 30 actions, courts should follow the principles set forth in In the Matter of G.S., also
decided today. In that case, this Court held that DYFS, as the agency initiating the action, would be
responsible to pay for the necessary and related defense services required by a qualified indigent when OPD
is not required to fund the defense. (p. 10)
4. In this case, Legal Services should pay a portion of the disputed fee. The trial court properly
exercised its discretion, in accordance with the Rules of Court, in ordering examinations by experts and in
directing who should pay the expense of those court-appointed experts. The expert was appointed at the
request of Legal Services, which had rejected the less-expensive, although possibly less-independent, expert
with whom DYFS had a contract. Thus, it is not unfair that Legal Services should contribute toward the
expert's fee. However, in future cases, courts must follow the standards set forth in this case. If OPD is
required to pay all or part of any fees for experts in cases of this kind, the application for such expenses
should be made directly to OPD in accordance with the procedures established in Cannady. The trial court
should review and resolve any disputes about OPD's decision. (pp. 11-13)
Judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE WILENTZ and JUSTICES CLIFFORD, HANDLER, POLLOCK, GARIBALDI
and STEIN join in JUSTICE O'HERN's opinion.
SUPREME COURT OF NEW JERSEY
A-
72 September Term 1993
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.
Argued January 19, 1994 -- Decided May 24, 1994
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
264 N.J. Super. 1 (1993).
Dale Jones, Assistant Public Defender, argued
the cause for appellant Office of the Law
Guardian Program (Zulima V. Farber Public
Defender, attorney).
Elizabeth Szabo, Staff Attorney, argued the
cause for respondent Somerset Sussex Legal
Services (Diane K. Smith, Executive Director
of Somerset Sussex Legal Services, attorney).
Mary Jane Lembo-Cullen, Deputy Attorney
General, argued the cause for respondent New
Jersey Division of Youth and Family Services
(Deborah T. Poritz, Attorney General of New
Jersey, attorney; Joseph L. Yannotti,
Assistant Attorney General, of counsel).
Nancy Goldhill argued the cause 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., ___ N.J. ___, 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 (1991), discussed infra at ___ (slip op. at 8-9), 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.
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 (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. We granted OPD's
petition for certification,
134 N.J. 479 (1993).
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 -8.73 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 (1992); In re Guardianship of J.C.,
129 N.J. 1 (1992); New Jersey Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591 (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.,
___ N.J. ___ (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 (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.
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 (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 .
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 separate counsel for
each. The issue in this case is whether the Legislature also
intended OPD to pay for the ancillary services needed for the
defense of eligible indigents represented by attorneys not
provided by OPD.
An analogous case, Cannady, supra, dealt with the cost of
ancillary services in a criminal action. 126 N.J. at 492.
Because OPD was statutorily required to provide all qualified
indigents with legal representation, we determined that that
mandate included payment of expert fees even when the indigent
was not represented by an OPD attorney. We viewed the State's
policy, as expressed in the Public Defender Act, to be "to
provide counsel for all indigent defendants," not merely for
those represented by OPD. Ibid. We held that the Act requires
OPD to make its services available not only to a defendant
financially unable to hire private counsel, but also to a
defendant who was or would have been unable to pay for all other
necessary services and expenses associated with adequate legal
representation. Ibid. We said: "[T]he Legislature intended a
unitary, centralized system through which all necessary expenses
of representation of an indigent defendant would be paid by the
OPD, regardless of whether that defendant is represented by the
OPD." Id. at 497-98.
Although Cannady dealt with criminal defendants, its
interpretation logically extends to indigent defendants in Title
9 actions. Even if a qualified indigent defendant is represented
by private counsel, the Public Defender Act obligates OPD to fund
the reasonable ancillary services necessary to provide an
effective legal representation subject to the Cannady
requirements.
In Cannady, we recommended a procedure that OPD should
follow when an indigent defendant represented by outside counsel
applies to OPD to obtain payment for such ancillary services.
OPD should control the amount of its funds expended for a legal
defense, should participate in the determination of indigency,
and should determine the necessity and reasonableness of those
requested ancillary services. Id. at 493-97. The Public
Defender Act confirms that interpretation by stating: "The
factors of need and real value to a defense may be weighed
against the financial constraints of the Public Defender's office
in determining what are the necessary services and facilities of
representation." N.J.S.A. 2A:158A-5.
Although we extend the principles of Cannady to require OPD to provide ancillary services to indigents in need of ancillary services in Title 9 child-abuse and neglect actions, we cannot extend that principle to Title 30 parental-rights-termination proceedings. The legislative classification of Title 9 and Title 30 actions will continue to result in different outcomes insofar as payment for ancillary services is concerned. (By the inclusion of a citation to N.J.S.A. 30:4C-12 in the Appellate Division holding below, that court intended to encompass only abuse and neglect actions brought under that complementary authority, not cases involving termination of parental rights.)
Consequently, in Title 9 child-abuse and neglect actions, trial courts should comply with the methodology established in Cannady, which requires OPD either to provide a qualified indigent with legal representation and related ancillary services by appointing an OPD attorney or to pay for such related services provided by private counsel.
However, in Title 30 parental-rights-termination actions, courts should follow the principles set forth in G.S., supra, ___ N.J. ___, also decided today. In that case, we hold that DYFS, as the agency initiating the action, will be responsible to pay
for the necessary and related defense services required by a
qualified indigent when OPD is not required to fund the defense.
In this case, we agree that Legal Services should pay a portion of the disputed fee. In the proper exercise of its discretion, and in accordance with Rule 5:3-3(a), the trial court had the power to order examinations by experts and, as well, direct who should pay the expense of such court-appointed experts. Rule 5:3-3(a) provides:
Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. The court may also direct who shall pay the cost of such examination.
In J.C., supra, we acknowledged the competing views in
experts' psychological theories of relationships between children
and their natural parents. 129 N.J. at 18-26. "A court must
assure a complete and balanced presentation of all relevant and
material evidence sufficient to enable it to make a sound
determination consistent with the child's best interests." Id.
at 22. Because experts' opinions play such critical roles in
courts' ultimate decisions in child-custody cases, courts may use
independent and objective experts. Ibid.
DYFS recognizes the necessity for an unbiased and exhaustive
presentation of all material and relevant evidence in child-custody cases to assure the child's best interests. For example,
in this case, it voluntarily paid half of the expert's fee for
the indigent parent. Our holding will not discourage DYFS from
continuing its custom of offering the services of experts with
whom it has contracted or in applying the payment of those fees
toward the fees of court-appointed independent experts.
In this case, because the expert was appointed at the
request of Legal Services, which had rejected the less-expensive
but perhaps less-independent expert with whom DYFS had a
contract, it is not unfair that it should at least contribute to
the fee of the expert. Although Somerset Sussex Legal Services'
public-interest mission is to provide representation to indigent
defendants in this class of cases, its $2400 budget for trial
services cannot sustain many such assessments.
In future cases, then, courts shall follow the standards
that we have set forth herein. If OPD is required to pay all or
a portion of any fees for experts in cases of this nature, the
application for such expenses should be made directly to OPD in
accordance with the procedures established by this Court in
Cannady, supra, 126 N.J. at 493-97. The trial court should
review and resolve any dispute about OPD's decision. This case
shows that it will not always be easy to follow the Cannady
procedures in a rapidly unfolding child-custody case. The
psychological evaluation of this mother had to be made within
days. Trial courts retain a reservoir of discretion to appoint
their own experts when necessary to the disposition of a matter
and may allocate the costs accordingly. We expect that to be a
rare circumstance.
The judgment of the Appellate Division is affirmed.
Chief Justice Wilentz and Justices Clifford, Handler, Pollock, Garibaldi, and Stein join in this opinion.