DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M. and D.M IN THE MATTER OF D.L.M A minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Appellant,

v.

L.M. and D.M.,

Defendants.

_________________________________

IN THE MATTER OF D.L.M.,

A minor.

_________________________________

June 10, 2016

 

Submitted March 7, 2016 Decided

Before Judges Lihotz, Fasciale and Nugent.

On appeal from an interlocutory order of Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FN-02-55-15.

John J. Hoffman, Acting Attorney General, attorney for appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ellen Buckwalter, Deputy Attorney General, on the brief).

DeFuccio Clancy & Esposito, LLC, attorneys for respondent Guardian Ad Litem (Sharon Clancy, on the brief).

PER CURIAM

In the context of Title 9 and Title 30 litigation, we must decide whether the Family Part has the authority to order the Division of Child Protection and Permanency (the Division) to pay a guardian ad litem's (GAL) expenses as they are incurred, with the understanding the Division can seek indemnification or allocation from other parties at the conclusion of the action. We conclude the court is without authority to enter such an order. Accordingly, we reverse and remand.

The Division appeals from a June 11, 2015 Family Part order denying reconsideration of an April 27, 2015 order. The April order memorialized the court's sua sponte decision: appointing a GAL for the child who was the subject of the child protective litigation; fixing "pursuant to [Rule] 5:8B(d), [the GAL's] hourly rate [at] $375"; and ordering the GAL's "fees shall be paid [by] the [Division] without prejudice to the Division['s right] to seek any possible indemnification." The GAL opposes the appeal.

The backdrop for this case began nine years ago, in 2007, when D.L.M. was born addicted to cocaine. The Division promptly reacted and obtained a court order awarding it custody, care, and supervision of the child. Approximately five months after his birth, D.L.M. was placed with his paternal grandmother. During the ensuing guardianship litigation, D.L.M.'s mother executed an identified surrender of her parental rights to D.L.M.'s grandmother. Following a trial, the Family Part entered a guardianship judgment terminating D.L.M.'s father's parental rights.1

In 2013, D.L.M.'s grandmother adopted him. In July the following year, the grandmother became incapacitated. She died on September 13, 2014. Following her incapacitation, the only adult who resided with her was hospitalized for shortness of breath and chest pains. While in the hospital, the adult tested positive for opiates, PCP, benzodiazepines, and amphetamines. Shortly thereafter, the Division filed an order to show cause seeking temporary custody of D.L.M., as well as the appointment of a law guardian. The court granted that relief on July 3, 2014. The implementing order stated the "matter [had] been brought before the Court . . . by the Division . . . pursuant to N.J.S.A. 9:6-8.21, et seq., and N.J.S.A. 30:4C-12 and R. 5:12-1, et. seq."; placed D.L.M. in the immediate custody, care and supervision of the Division; authorized supervised visitation by the grandmother upon release from the hospital; and barred D.L.M.'s mother and father from visiting with him.

On the return date of the order to show cause, the court continued D.L.M. under the custody, care and supervision of the Division. Following a case management review hearing in August 2014, the court entered an order stating, among other things: "Division withdraws the Title 9 complaint against the defendants. All parties consent to jurisdiction pursuant to Title 30. Ordered that the minor child is hereby declared a ward of the court and the family is found to be in need of services pursuant to N.J.S.A. 30:4C-12." Following the next case management review hearing on October 8, 2014, the court entered an order providing: "On motion by the Division, and by consent of the parties, [D.L.M.'s mother] shall be permitted to have supervised therapeutic visitation with [D.L.M.] in accordance with the [Therapeutic Supervised Visitation Program]."

Three weeks later, on October 31, the Division denied D.L.M.'s father's motion to intervene, as well as motions by the father and Law Guardian to vacate the order terminating the father's parental rights. In the same order, the court required the father to undergo a drug abuse evaluation and ordered the Division to provide a supervised visitation after the father completed the substance abuse evaluation.

Following a compliance review hearing in November 2014, the court signed a "Title 30 Child Protection Multipurpose Order" containing provisions entitling D.L.M.'s father to therapeutic visits upon completion of a substance abuse evaluation and scheduling a "Best Interest Hearing on February 24, 2015[.]"

Meanwhile, when his mother died, the father filed an order to show cause in the Chancery Division, Probate Part, seeking to be appointed testamentary guardian of D.L.M. in accordance with a codicil his mother had executed before her death. On February 3, 2015, the court denied the father's motion and granted the Division's motion "to join the application for testamentary guardianship in the Probate Part with the best interest hearing on the issue of guardianship in the Family Part under the Family Docket." The court's written decision stated, "The Family Part has jurisdiction over the joined matter."

The court "transfer[red] to the Family Part the issue of guardianship of D.L.M. as it is manifest that the issues presented arise out of a family or family type relationship." The court stated it was transferring "to the Family Part . . . the issue already before it: who should be the Guardian of D.L.M. in view of the passing of [his grandmother]." The court "[r]etained in the Probate Part . . . the issue of admissibility to probate the proffered after-discovered codicil said to have been executed by [D.L.M.'s grandmother] on September 11, 2014."

Two days after the Probate Part order was entered denying the father's motion to be appointed testamentary guardian, a consent order was entered in the Title 30 action, permitting D.L.M.'s mother unsupervised visitation "pursuant to a schedule to be arranged by the Division, the caretaker and [D.L.M.'s mother]." Later that month, after a February 24 case management review, the court entered a "Title 30 Child Protection Multipurpose Order" scheduling a "Best Interest Hearing" on April 16, April 17, and April 24. D.L.M.'s mother and father were the only adults competing for D.L.M.'s custody.

The best interest hearing did not proceed as scheduled. On April 27, 2015, the court entered the order that is the subject of this appeal. The order states that the matter appeared before the court by way of its own motion, sua sponte, on April 24, 2015, with telephone appearances by the Deputy Attorney General representing the Division and by the Law Guardian.2 The court appointed a GAL, according to the order, "on its own motion for good cause shown pursuant to . . . R. 4:26-2(a) and 5:8B(a)." The order further provides, "pursuant to . . . 5:8B(d), [the GAL's] hourly rate is $375.00. [The GAL's] fees shall be paid [by the Division] without prejudice to the Division['s right] to seek any possible indemnification." The order required the GAL to submit monthly statements to the parties as well as a certification of services at the conclusion of the matter, and afforded the parties the right to respond "prior to the court fixing the final fee[.]" In an accompanying "Statement of Reasons," the court explained

The court set forth the reasons for appointing the guardian ad litem on the record. Based upon the long and contentious history in this matter, and the gravity and complexity of the issue[s], the court requires the assistance of a professional who is completely non-adversarial and who will objectively report to the court on the best interests of the child. The guardian ad litem will conduct interviews with the child and will work independently seeking to gain the child's confidence and trust. Additionally, the guardian is expected to talk to [the child's] teachers and foster parents, review the various reports and other relevant documents in this matter, as well as interviewing both biological parents, and conducting an on-site inspection of each biological parents' residence. Ultimately, the guardian ad litem will recommend to the court his opinion of what is in the child's best interest.

[The GAL] has been appointed by the court based upon his extensive experience acting as guardian ad litem over many years in Morris, Hudson, Bergen and Essex counties. He has litigated custody trials and has been appointed as a guardian ad litem in child abuse or neglect and child custody cases at least 20 times. Given the procedural and substantive complexity of this matter, it is clear that this case cries out for a guardian ad litem to assist the court in evaluating all of the facts and varying positions and interests among the parties.

Therefore, pursuant to [Rule] 5:8B(a), this court hereby appoints [the GAL] for [the child]. As noted above, fees for [the GAL's] services shall be paid by the Division without prejudice. [R.] 5:8B(d).

The April 27 order stated in its final provision it "shall be effective on May 1, 2015." The Division moved for reconsideration, and the court heard argument on June 15, 2015. The Law Guardian took no position on the motion, the mother noted at oral argument she was not requesting the appointment, and the father opposed the motion. During oral argument on the motion, the Division did not challenge the court's appointment of a GAL. Rather, the Division contended the court did not have the authority to compel the Division to pay the GAL's fees.

The Deputy Attorney General (DAG) representing the Division informed the court that in his twenty-seven years of experience, he was unaware of any case where a professional - medical, legal, or otherwise - billed the Division $375 per hour. He further argued the court was required to make a determination about which party is capable of payment, not "to just put it upon the Division and then hope that maybe they will be able . . . to recover." The DAG also informed the court he had "polled and received responses from deputies in [fifteen] of the [twenty-one] counties and in all of these guardian ad litems . . . have been appointed and all . . . have served pro bono except for one case that I have heard of." The court, in response, noted one other case in which it had appointed as a GAL the same lawyer as it had appointed in the pending case.

The father's attorney noted that a Court Appointed Special Advocate (CASA) had been appointed but had yet to interview the parties, inspect prospective accommodations of the child, or discuss the matter with a psychologist. The attorney also pointed out the unusual circumstances by which the father was a party to the proceedings, namely, the Division's objection to his application to be appointed testamentary guardian of D.L.M. Noting the Division's "initial papers" in which the Division said it had no source of funding for paying a GAL, the father's attorney said the Division had a general appropriations fund from which its experts were paid.3 Lastly, the father's attorney represented he had "not had an attorney's fee on this case in a long time. I'll get my attorney's fee somewhere down the road."

The court denied the motion, concluding it had "clear authority to appoint a Guardian Ad Litem, award fees, and 'allocate final payment of the Guardian Ad Litem fees between the parties.' [R.] 5:8B(d)." In its oral opinion explaining the reasons for its appointment of the GAL, the court noted, "this [GAL] has extensive experience in this role. But I'm not going to ask him to work for free. He's entitled to be paid for his services based on his vast experience." The court continued

Now, I'm going to order the Division to pay his fees because they are the deep pocket. [The father's attorney] . . . has not been paid for quite some time. [The mother]. . . has someone from the office of Public Defender, someone very esteemed from the [O]ffice of the [P]ublic [D]efender representing her. She certainly is not able to pay.

The court noted D.L.M.'s father would be looking toward the paternal grandmother's estate to help him support the child if awarded custody, and "that is certainly a source . . . of monies that the Division can look to in order to recoup either all or part of [the GAL's] fees."

The court also issued a written opinion. In its written decision, it rejected the Division's contention no funds for such an appointment had been appropriated. The court explained

Fees are "'legally payable,'[] only if the legislature has appropriated funds to pay appointed attorneys in Title 30 actions." In [N.J. Div. of Youth & Family Servs. v. D.C., 118 N.J. 388 (1990)], our Supreme Court considered "the issue of compensation for attorneys appointed to represent indigent parents and their minor children in actions . . . for termination of parental rights." Id. [at 392]. The court ultimately found that "no provision appropriates funds for legal representation of parties to Title 30 actions." Id. at 398. However, it did so by noting that the omissions in Title 30 "contrasts with the appropriations for Title 9, chapter 6 . . ." Id. Citing N.J.S.A. 9:6-8.71, the Supreme Court found that "that section appropriates funds to compensate counsel in actions filed under N.J.S.A. 9:6-8.21 to -8.73" Id. The [C]ourt in D.C. held that contrary to the Division's assertion, N.J.S.A. 9:6-8.21 appropriates funds for payment of counsel fees in Title 9 actions such as this case.

The court did not attempt to reconcile its rationale with either the consent order it had issued dismissing the Division's Title 9 action or its intervening orders proceeding under Title 30.

On leave granted, the Division filed this interlocutory appeal. The parties inform us the best interest hearing has been concluded and the mother awarded custody of D.L.M. According to the reply brief and appendices, the total fees charged by the GAL through October 22, 2015 were $58,463.80, all of which have been paid, with the exception of two bills totaling $1,877.10. The GAL also sought $14,007.30 for "the efforts needed on the appeal." According to the Division's reply brief, on October 30, 2015, the GAL submitted a proposed form of order directing the outstanding trial and appellate fees continue to be paid by the Division.4 As of the date the Division filed the reply brief, the court had not executed the order.

On appeal, the Division disagrees "that the appointment of a GAL (in addition to [the child's] Law Guardian and Court Appointed Special Advocate . . . who is also an attorney . . .) is . . . necessary," but does not challenge the trial court's authority to appoint a GAL. Rather, the Division argues the trial court had no authority to require the Division to pay the GAL's fee, let alone his $375 per hour fee.

The Division urges that fees associated with the GAL in the context of this action should not be allocated to the Division for two reasons: first, "[r]ather than seeking to return or obtain custody of D.L.M. as contemplated by the rules, the Division is seeking to end its custodial role as soon as practicable when permanency is achieved with either of [D.L.M.'s] birth parents or a third party as determined at the best interest hearing"; and second, "the Division has no appropriation of funds for payment of a GAL and therefore cannot be ordered to pay [the GAL's] fees."

The Division also argues that even in instances where the Division is required to seek appropriations, a trial court "should first explore if alternative methods of funding are available, and if so, they should be employed." The Division suggests in this matter the court could have appointed a pro bono GAL or could have allocated fees between the parties seeking custody and visitation.

Lastly, the Division argues the $375 per hour fee set by the trial court is excessive and not consistent with compensation paid to other court-appointed counsel.

The GAL argues the interlocutory order granting leave to appeal was premature because the issue cannot adequately be determined until the trial court has allocated the fees among all parties. The GAL also argues the decision on custody has since been rendered, which obviates an interlocutory appeal. Lastly, the GAL argues the trial court had the authority to allocate payment among all parties, including the Division; and the Division did not meet the standard for reconsideration of the court's initial order.

Our standard of review regarding a Family Part judge's discretionary decisions is deferential. Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (citing Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009)). "[J]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court." Ibid. (quoting Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007)). We owe no deference, however, to a judge's legal conclusions, which "are subject to our plenary review." Ibid.

Preliminarily, we reject the GAL's argument that leave to file an interlocutory appeal was prematurely granted because the issue cannot adequately be determined until the trial court has made a final allocation and because the custody decision has since been rendered. Neither the allocation of fees nor the award of custody is relevant to court's authority, or lack of authority, to issue an order requiring the Division to pay a GAL's fees as they are incurred.

We turn to the Division's arguments. Rule 5:8B(a) provides in pertinent part: "In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment." Rule 5:8B(b) affords the GAL "the right to consent or to decline to serve as such," and further states, "[t]he parties shall have the right to object to the person appointed as guardian ad litem on good cause shown."

Rule 5:8B(d) authorizes the court to fix the GAL's fees

Fee. The hourly rate to be charged by the guardian ad litem shall be fixed in the initial appointing order and the guardian ad litem shall submit informational monthly statements to the parties. The court shall have the power and discretion to fix a retainer in the appointing order and to allocate final payment of the guardian ad litem fee between the parties. The guardian ad litem shall submit a certification of services at the conclusion of the matter, on notice to the parties, who will thereafter be afforded the right to respond prior to the court fixing the final fee.

We reject the Division's argument that a court has no authority to require the Division "to pay a court-appointed GAL for a child, in the context of child protective litigation," at least to the extent the argument challenges a court's authority to do so under Rule 5:8B. Rule 5:8B specifically authorizes the court to "allocate final payment of the guardian ad litem fee between the parties." Indisputably, the Division is a party to Title 30 litigation. The rule does not carve out an exception for the Division in Title 30 litigation and the Division has cited no authority specifically exempting it from the rule's reach. Thus, on its face, the rule applies to the Division.

Having said that, there may nonetheless be merit in the Division's argument it had no appropriated funds to pay for a GAL in what had become a Title 30 action by the time the court, sua sponte, made the appointment. When the Division raised that argument to the trial court, the court should have provided the Division with an opportunity to support its assertion. Perhaps the Division could have done so by requesting judicial notice, or perhaps it could have developed other competent evidence. Rule 5:8B(b) affords "[t]he parties . . . the right to object to the person appointed as guardian ad litem on good cause shown." The absence of appropriate funds certainly constitutes good cause. The Division should have been afforded an adequate opportunity to present its claim when the court first decided to appoint a GAL, rather than on a motion for reconsideration.

Because we are reversing the trial's court's order requiring the Division to pay the GAL's fees, the Division shall have the opportunity on remand to develop its argument that it has no appropriations to pay for a GAL's fees in this context.

We are reversing the trial court's order because nothing in the rule authorizes a court to do what the court did in this case, namely, require the Division to pay the GAL's bills as they are submitted, and shift to the Division the burden of seeking indemnification or allocation when the case ends. The rule authorizes a court, in its discretion, to fix a retainer in the appointing order. The rule further authorizes the court to allocate final payment. Here, contrary to the rule, the court not only ordered one party to bear the GAL's significant hourly fee, but also entered an order shifting to that party the burden of seeking at the conclusion of the case indemnification or allocation among any parties or non-parties, including the deceased grandmother's estate. The rule explicitly requires the court to allocate payment of the GAL's fee.

The court's rationale for requiring the Division - and only the Division - to pay the GAL's fees as incurred, contrary to the rule's express provision, was "because they are the deep pocket." That view is myopic. As we noted forty years ago, "[n]otwithstanding the breadth of [the Division's] responsibility, its authority to act on behalf of the children coming under its care is limited by its available financial resources." State in Interest of D.F., 145 N.J. Super. 381, 386 (App. Div. 1976), certif. denied, 74 N.J. 260 (1977). See also State ex rel. J.S., 202 N.J. 465, 484 (2010) (recognizing as a "persuasive policy consideration[]" the Division's "concern for over-reliance on [the Division's] limited resources").

One can hardly dispute in today's financial climate that the public trough is no longer full. The demands on the State's financial resources are considerable. See, e.g., Teamsters Local 97 v. State, 434 N.J. Super. 393 (App. Div. 2014) (discussing the fiscal strength of State and local governments generally, and, specifically, the State's unfunded liability of its retirement systems). We reiterate what we once noted in another context: "the statutory enactment creating [the Division] did not constitute that agency a bank upon which the . . . [c]ourts may draw to finance dispositions of juveniles coming before them." D.F., supra, 145 N.J. Super. at 387.

Financial demands on the State and the Division should be considered when a court exercises its discretion to appoint a GAL in Title 30 litigation, particularly if the child or children involved are represented by a law guardian, a CASA volunteer, or as in this case, both. Certainly, the role of a GAL is different from that of a law guardian or CASA representative. See N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68-70 (App. Div.), certif. denied, 174 N.J. 39 (2002). But a court should carefully consider whether the additional services of a GAL are necessary and whether "the circumstances warrant such an appointment." R. 5:8b(a). Here, though the court made clear what tasks the GAL was required to perform, it did not explain why either the Law Guardian or the CASA volunteer would not or could not perform the same tasks.

A court considering appointing a GAL in Title 30 litigation should also consider what circumstances, if any, would ever warrant the appointment of an accomplished attorney who charges a high hourly rate rather than an equally experienced attorney willing to act pro bono; and whether a professional other than an attorney can discharge the GAL's role. Simply appointing a seasoned attorney who charges a significant fee, without consideration of alternative options, is not readily reflective of exercising discretionary conscientious judgment as opposed to arbitrary action. Milne, supra, 428 N.J. Super. at 197.

In the case before us, we need not determine whether the court's appointment of an experienced attorney as a GAL at a considerable hourly rate - without consideration of the financial factors involved, what duties the GAL would perform that a Law Guardian or CASA volunteer would not perform, and whether competent pro bono counsel is available constitutes an abuse of discretion. The Division has not challenged the court's exercise of discretion in making the appointment, and in any event, we have concluded the trial court misapplied its discretion by requiring the Division to pay the GAL's fees as they were incurred.

The Division also argues the trial court abused its discretion in fixing the GAL's fee at $375 per hour, a fee considerably greater than those charged by professionals who appear in Title 9 and Title 30 cases, albeit in other roles. Although we do not necessarily disagree with the Division's representation, the existing record does not enable us to determine the range of fees charged by professionals under similar circumstances. As with the issue concerning appropriation of funds, on remand the Division should be afforded the opportunity to develop a record on the reasonableness of the GAL's hourly fee in these circumstances, including the impact such a drain on its available resources would have on its ability "to act on behalf of the children coming under its care[.]" D.F., supra, 145 N.J. Super. at 386. The trial court's order requiring the Division to pay the GAL's fee, subject to allocation at the end of the case, is reversed. This matter is remanded to the trial court to consider whether the Division has appropriations to pay a GAL in these circumstances. If appropriations exist for that purpose, the court should determine an appropriate fee based on evidence presented by all the parties, and conduct an allocation hearing.

Reversed and remanded. We do not retain jurisdiction.

1 We affirmed the order terminating the father's parental rights. N.J. Div. of Youth & Family Servs. v. D.M., No. A-2509-09 (App. Div. Jan. 18, 2012), certif. denied, 210 N.J. 218 (2012), cert. denied, __ U.S. __, __, 133 S. Ct. 571, 184 L. Ed. 2d 356 (2012), reh'g denied, __ U.S. __, 133 S. Ct. 924, 184 L. Ed. 2d 715 (2013).

2 The transcript of the proceeding has not been provided.

3 The Division has not included its motion in the appellate record, but has included the "New Jersey Office of the Public Defender Pool Attorney Guidelines," a document containing "Billable Rates" of $50 and $60 per hour. We cannot determine from the record whether the trial court was presented with this information.

4 Applications for fees for services rendered on appeal must be addressed to this court, not the trial court. R. 2:11-4.