In re the Guardianship of Dotson

Pek Cubiam.

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.

I

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 DYES be made their guardian. After a one-day hearing on the DYES 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 DYES. During the course of the hearing Ms. Dotson was represented by Somerset-Sussex Legal Services.

A Uotiee 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 DYES 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).1

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.

II

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. B. 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.

Fone 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 B. 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, incorporate certain passages verbatim in the statement of proceedings. If such incorporation appears impractical because of the length of these portions of testimony, the trial court may obtain from the reporter an estimate of the cost of transcription of such portions in order to ascertain if the financial condition of the appellant is such that these costs would he unreasonably burdensome.

Ill

We focus now on the specific type of proceeding before us. It presents circumstances of an unusual character. While it is denominated a civil matter, it is almost quasi-criminal in nature, since it seeks to terminate for cause all parental ties between the children here involved and their natural parents. It is not the ordinary civil suit where, except for the possible waiving of filing fees, the parties are left to their own resources in the litigation they pursue. As such, it is deserving of special treatment.

In cases of this sort the trial judge should first decide whether the grounds stated for the appeal are frivolous. Cf. Stewart v. Stewart, 59 N. J. 301 (1971). If not, the trial judge should then decide whether in fact the issues to be presented on appeal are such that they can adequately be determined on the basis of a truncated record. If they can, a full transcript will not be necessary. Issues falling into this category might include those suggested to us at oral argument in the instant case but not briefed or otherwise adverted to: (a) the trial court erred in admission of certain allegedly hearsay evidence; (b) the burden of proof which the DYFS must meet should be proof beyond a reasonable doubt; and (c) the trial court used a “best interests of the children” test for termination of parental rights whereas our case law calls for a standard “much beyond” that. The list is obviously illustrative rather than exclusive, and the decision as to whether any issue may adequately be presented for appellate review with a less-than-complete record is in the first instance for the trial judge, whose familiarity with all facets of the case is deserving of some deference.

If the issues are such that only by reference to a full and complete transcript may a reviewing court properly decide the case, then the Division of Youth and Family Services will have to bear the cost thereof. With this last provision we emphasize that we do not go beyond the type of case before us, involving as it does a most sensitive area of basic human relations, and stress the fact that the procedure recommended herein is to be employed only because of the indigency of the applicant. We repeat our awareness of the general proposition that a full and complete transcript is desirable for appellate review. Where indigency is a factor in this type of case, however, and the grounds for appeal can be fully considered without a complete transcript, a reconstruction pursuant to the procedure set forth herein will provide the appellant and the reviewing court with an adequate record for appeal. Before resorting to this procedure and expending the time of the court and the money of the State and the parties, the trial court should determine (in addition to the issues referred to above) whether alternative means of financing the production of a complete transcript are available (including funds provided by the federal government, suggested as a possibility in Ms. Dotson’s case in light of federal financing of legal services projects). In that way the balance between the appellant’s need for a transcript on appeal and the State’s interest in preservation and proper use of its resources will be suitably struck.

The judgment of the Appellate Division is:

Affirmed.

1 The matter properly should have been presented to this Court as a motion for leave to appeal pursuant to R. 2:2-2(b) as there was no “final judgment” in the Appellate Division. R. 2:12-3. Cf. R. 2:2-5. We consider our grant of certification as tantamount to the granting of a motion for leave to appeal.