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New Jersey Division of Youth and Family Services v. Defendants.

Decided: September 10, 1987.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.

Michels and MacKenzie. MacKenzie, J.s.c. (temporarily assigned).


Joel C. Rinsky, Esq., (Rinsky) and Janet B. Romano, Esq., (Romano) are attorneys who were appointed by the Chancery Division, Family Part to represent the separate interests of D.C. and M.C., the parents of three minor children in a guardianship action instituted by the Division of Youth and Family Services (DYFS) under N.J.S.A. 30:4C-15 et seq. J. Patrick Roche, Esq., (Roche) is an attorney who was appointed to represent the interests of the children in these proceedings. The three attorneys appeal from an order of the trial court which determined that the services they rendered are compensable but not payable. Respondents are the Department of Law and Public Safety (Attorney General) and the Department of the Public Advocate and the Office of the Public Defender (Public Advocate), which had been brought before the trial court to litigate the counsel fees issue only. They agree with the trial court's determination that the fees are not payable by a state entity. In addition, the Public Advocate argues that the trial court was mistaken in its conclusion that the services of the appointed attorneys are compensable.

This court must decide whether there is any statutory or other basis for compensating the attorneys. As we observed in Crist v. N.J. Div. Youth & Family Services, 135 N.J. Super. 573, 575 (App.Div.1975), " N.J.S.A. 30:4C-1 et seq., does not provide for the assignment of counsel for indigent parents in such proceedings or for the payment of compensation to their attorneys, and our court rules do not provide for the payment of compensation to assigned counsel." In contrast, the legislature has expressly provided for the assignment of counsel for indigent parents and children in child abuse and neglect actions brought under Chapter 6 of Title 9. See N.J.S.A. 9:6-8.21(d), (e); N.J.S.A. 9:6-8.23(a); N.J.S.A. 9:6-8.43(a).*fn1 Moreover, N.J.S.A.

9:6-8.71 appropriates funds for compensating counsel in such proceedings.

If, however, substantive issues common to both statutory proceedings surface in the guardianship action, is there then a basis for the court to award counsel fees to appointed counsel? Does such a basis for compensation exist by virtue of the similarity of legal services rendered under Title 9 and Title 30 proceedings?

The three appointed attorneys maintain that issues of visitation of the same kind as are present in a Title 9 action, were involved in the Title 30 action and, as the trial court found, became so intertwined with the issue of termination of parental rights as to be indistinguishable. They also contend that the action could have been commenced under either Title 9 or Title 30, and their precise services, if rendered under Title 9, would have been both compensable and legally payable. For reasons hereafter stated, we hold that the services of the three appointed attorneys are neither compensable nor payable by any state entity.

Some procedural history is necessary. In 1975, DYFS filed a complaint under N.J.S.A. 9:6-8.21 et seq. and N.J.S.A. 30:4C-12 against D.C. and M.C., alleging child abuse and neglect. Pool attorneys were assigned for each parent through the Office of the Public Defender and that office also acted as law guardian

for the minors involved. After trial of the action in 1975, D.C. was found guilty of child abuse and neglect, and M.C. was found guilty of neglect. The case continues to be periodically reviewed by the Family Part.

In November 1983, DYFS commenced this guardianship action pursuant to N.J.S.A. 30:4C-15 et seq. against D.C. and M.C., seeking to terminate their parental rights in two of their children, Danny and Mark. The complaint was subsequently amended to seek termination of parental rights as to a third child, Michael. In December 1983, Rinsky and Romano were appointed by the trial court, on the authority of R. 5:3-4(a), to represent the parental interests of D.C. and M.C., respectively. Roche was similarly appointed to serve as law guardian for the three children in the proceedings.

An 18-day bench trial culminated in the entry of a judgment on July 31, 1985 which terminated the parental rights of D.C. and M.C. as to Mark, who was then committed to the guardianship of DYFS. The trial court found, however, that the best interests of Danny and Michael would not be served by terminating the parental rights of their parents. The order accordingly directed that temporary legal and physical custody of Danny was to remain with DYFS, while Michael would continue in the legal custody of DYFS, but in the physical custody of his parents. No appeal was taken from that judgment.

We turn then, to the circumstances giving rise to this appeal. In April 1984, Rinsky, Romano and Roche petitioned the trial court for an order compelling the Public Advocate or Attorney General to pay their reasonable counsel fees. In a decision rendered September 25, 1984, the trial court denied their motion, finding that no funds were available for such payment.

The three appointed attorneys promptly filed a notice of appeal and a notice of motion for leave to appeal. The attempted appeal as of right was dismissed, but leave to appeal was granted. By order dated December 14, 1984, this court, proceeding under R. 2:11-2, vacated the order of the trial court and

remanded the counsel fees issue for further proceedings. Specifically, upon conclusion of the underlying action, Rinsky, Romano and Roche were to seek an order to show cause "for payment of counsel fees directed to the entities from whom payment is sought." Furthermore, the remand order instructed the trial court to:

make findings of fact and conclusions of law as to those services which are statutorily compensable and payable and those he deems compensable but not legally payable . . . The question of whether some or all of the services rendered are so intertwined as to be inseparable shall be addressed in factual findings and in legal conclusions. Likewise, the judge shall address the question of whether, in that situation, payment or fees can, under statutory and case law, be made because of the allegedly "hybrid" nature of such services. (citations omitted).

The Attorney General's subsequent motion for reconsideration of the remand order was denied.

Consistent with the remand order, the three appointed attorneys obtained an order on November 12, 1985 which directed the Attorney General and the Public Advocate to show cause why counsel should not be entitled to be paid for their legal services. Certifications were filed by the various parties in lieu of testimony. In a written opinion issued on July 3, 1986, the trial court again denied payment to the appointed attorneys. Because it found the issue of visitation in the guardianship action to be substantial and because the services rendered by appellants were so similar to those required of counsel in an action brought under Title 9, the trial court determined that their services were compensable. As the trial court explained:

The court interviewed the children and made findings of fact as to each child for the purpose of ascertaining what was in their best interest. The outcome of the fact-finding procedure would ultimately determine whether the parental rights of [M.C. and D.C.] would be terminated. The foregoing, however, was not limited to that purpose. The psychological evaluations and interviews of the children were also used to determine the issue of whether the parents would be allowed to visit the children while the trial was pending. During the trial there were several motions made . . . by counsel for visitation. [Emphasis in original].

Furthermore, the trial court observed that the final judgment incorporated a determination as to visitation rights and that

"[t]he information, facts, evaluations and interviews by which such a determination was made was not totally separate and apart from the guardianship proceeding."

In the trial court's view, not only were the issues of visitation and termination of parental rights interrelated, but the legal services provided regarding those issues were:

so intertwined as to cause a mix which makes them inseparable, thereby rendering the services to be hybrid in nature and such hybrid services resulting from this mix of visitation and termination services should result in counsel being paid for such hybrid services rendered, just as if those ...

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