On certification to the Superior Court, Appellate Division, whose opinion is reported at 219 N.J. Super. 644 (1987).
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.
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).
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.
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 ...