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In re Guardianship of B.L.N.

Decided: April 11, 1991.

IN THE MATTER OF THE GUARDIANSHIP OF B.L.N., L.M.N., J.A.M.N. AND C.L.M.


Lindsay, J.s.c.

Lindsay

[250 NJSuper Page 114] The question presented is: In a termination of parental rights trial, does an indigent defendant who has been assigned counsel have the right, at public expense, to the services of a psychologist

to aid his counsel in his defense as well as to have a psychological evaluation for the purpose of trial?

Since the State engages psychological and psychiatric experts to testify on its behalf, it is reasonable that the defendant should have the same right. Who should pay for it is another matter.

The Division of Family Services has traditionally paid for such examination on the agreement that the results will be available even if the expert is not called to testify by the defendant and that the Division can call him as its own witness. There is no authority in the statutes per se to require payment by D.Y.F.S.

In preparing such defense, any trial counsel needs the exam to guide him. He has to be able to consult with the examiner and decide whether he wants to call him as a witness.

The question is who should be required to pay for it. The County has been made a party and appeared in opposition to the motion to compel payment.

There are no statutes or rules directly on point for defense costs, other than counsel fees, to be covered at public expense in non-criminal cases.

"Inherent power is vested in court to require that counsel and scientific tests be provided indigent defendant without costs.." M. on behalf of T., a minor v. S., 169 N.J. Super. 209, 404 A.2d 653 (Law.Div.1979).

Before we had a public defender program, the County's responsibility was not only to indigents accused of criminal offenses, but to indigents in general. Lurry v. Mills, 152 N.J. Super. 127, 377 A.2d 804 (Co.1977); State v. Horton, 34 N.J. 518, 170 A.2d 1 (1961).

The possibility exists that, by ordering the County to cover these types of defense costs, the floodgates will be opened for unanticipated litigation. Due to the increasing number of indigents entering into the justice system as litigants and a faltering economy, the problem will arise over and over again until

concrete laws and rules are set up by the Legislature ...


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