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In re Guardianship of Felicia Dotson

Decided: December 16, 1976.


For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For reversal -- None. Pashman, J., concurring. Pashman, J., concurring in the result.

Per Curiam

[72 NJ Page 114] This case involves the involuntary termination of parental rights. As framed by the parties the issue is whether an indigent has an absolute and unconditional right, constitutional or otherwise, to be provided at State expense with a full and complete transcript for use on appeal. At the outset we observe that under the circumstances

before us we need not resolve this broad question in order to decide the case, cf., e.g., Township of Ewing v. King, 69 N.J. 67, 68 (1976). We intend, however, to furnish some guidance to trial courts who may be confronted with the general problem of how best to insure an indigent in a civil case the essentials by way of a record of the trial proceedings for use on an appeal; but we turn first to the instant matter.


On June 6, 1973 the Division of Youth and Family Services (DYFS) in the Department of Institutions and Agencies commenced proceedings pursuant to N.J.S.A. 30:4C-15 to obtain a judgment that the best interest of four minor children born to Lizzie Mae Dotson required that DYFS be made their guardian. After a one-day hearing on the DYFS petition, during which time oral testimony was taken, the judge of the Juvenile and Domestic Relations Court ordered that all parental ties between the children and their natural parents "be terminated for all purposes" and that the minor children be committed to the "care, custody and guardianship" of DYFS. During the course of the hearing Ms. Dotson was represented by Somerset-Sussex Legal Services.

A Notice of Appeal was filed on behalf of Ms. Dotson. She then applied before the trial judge for a waiver of the fees for the transcript because of her indigency and for a stay of the order terminating her parental ties. The trial judge granted the stay and in a written opinion held that the waiver of the fees for the transcript was appropriate both on constitutional grounds and under the Rules governing the Courts, although he was of the view that the appeal had no merit. He ordered the State to bear the costs of preparing the transcript.

The Appellate Division affirmed after the State's interlocutory appeal on the transcript question, holding that the trial court did not mistakenly exercise its discretion under

R. 1:1-2 in granting Ms. Dotson's request and specifically ordering DYFS to "pay the costs of the transcript." One judge concurred but preferred to "rest the result on constitutional grounds * * *." We granted the State's petition for certification. 68 N.J. 171 (1975).*fn1

While, as indicated, certain pertinent instructions will follow for the benefit of those who must decide these issues at the trial level, we dispose of the case before us in summary fashion, in view of these facts: (1) the hearing below lasted only one day; (2) the cost of transcribing the testimony will be less than the cost of further legal consultation and court hearings revolving about a truncated record; (3) these proceedings have been pending for more than three years; and (4) even under an expedited procedure it is possible that another year will pass before this controversy is finally settled. These factors, particularly the desirability of avoiding further delay, compel us to affirm the judgment of the Appellate Division, in turn affirming the order of the trial court that the Division of Youth and Family Services furnish Ms. Dotson with a complete transcript for her use on appeal.


We go further than required by the case before us to set some guidelines for determining whether an indigent aggrieved party may present effective argument on appeal without a complete transcript of testimony at trial. Preliminarily, we observe that ordinarily the transcript is an integral part of the record on appeal. R. 2:5-4(a). It gives the reviewing court a basis for a complete and proper analysis of all the issues before it. It also provides the appellate advocate with a firm foundation for his arguments that trial error occurred

or that the cause of justice is better served under the facts of the case by a change in the law.

However, under appropriate circumstances the same goals can be achieved without the filing of a complete transcript. This has been recognized in R. 2:5-3(c), which provides for the abbreviation of the transcript; in R. 2:5-3(e), providing for a statement of proceeding in lieu of transcript when no verbatim record has been made of the proceedings; and in State v. Smith, 84 N.J. Super. 452 (App. Div.), certif. den., 43 N.J. 270 (1964), dealing with judicial reconstruction of the record after a hearing when the stenographer's trial notes have been lost.

None of the just-mentioned procedures applies on its face to the situation where an indigent requests a waiver of the transcript filing fees and assumption of them by the State. Where the specified grounds of appeal do not require a complete transcript, however, those procedures may provide a means of meeting an indigent's needs for prosecution of the appeal while at the same time sparing the possible expense to the State of having to furnish a transcript. Accordingly, we hold that where an indigent cannot afford the production of a complete transcript and the grounds for appeal by their nature are such that verbatim reconstruction of the entire record is not necessary for full and complete appellate review, the trial judge should direct the parties to pursue the procedure set out in R. 2:5-3(e). If the parties cannot agree on a statement of proceedings, the court may, in its discretion, hold a hearing to resolve any disagreements. At that hearing the judge may call upon the court reporter who served at the original trial to read from his or her notes as an aid in the resolution of any dispute. The court may also, if necessary, ...

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