In the Interest of L. R. R. v. Christian Family Services, Inc.

620 S.W.2d 14, 1981 Mo. App. LEXIS 2938

• Court: Missouri Court of Appeals
• Decided: May 19, 1981
• Docket: 43105
• Status: Published

Opinions

CRIST, Presiding Judge.

Appellant (hereinafter “agency”) appeals the trial court’s denial of its motion to retax costs pursuant to Rule 77.05. We affirm.

L. R. R., the minor child involved, was born on February 28, 1976, of a thirteen year old mother and an indigent, and likewise minor father. Approximately five months later, on July 16, 1976, agency acquired legal custody of L. R. R. Subsequently, agency sought, by petition, termination of the parental rights of the natural parents. A hearing on agency’s petition was held March 26,1980. All parties to the hearing were individually represented by counsel, the court having appointed a guardian ad litem for L. R. R. and her mother, and an attorney for the natural father according to the dictate of § 211.462, RSMo. 1978.

The trial court terminated the parental rights of the minor mother and indigent father on April 3, 1980, and ordered that legal custody of L. R. R. remain with agency for the purpose of adoption. The trial court further ordered that L. R. R.’s guardian ad litem, mother’s guardian ad litem, and father’s attorney be allowed $100.00 each for services rendered. These allowances were to be considered part and parcel of the proceedings “costs,” and as such, paid by agency.

Agency contends that the trial court exceeded its jurisdiction when it taxed, as costs against agency, the attorney’s fees of both mother’s guardian ad litem and counsel for father.¹

Agency seeks relief pursuant to State ex rel Cain v. Mitchell, 543 S.W.2d 785 (Mo. banc 1976). In Cain, the court considered it improper practice to tax as costs, against a county governmental unit, the fees of an indigent juvenile’s court-appointed attorney. Factually, the present situation differs inasmuch as we are concerned with the propriety of assessing attorney’s fees as costs, against the “agency . . . receiving legal or actual custody ...” of the minor child. Section 211.462, RSMo. 1978. The above quoted statute reads, in its entirety, as follows:

1. As soon as practicable after the filing of a petition and prior to the hearing, the parent or guardian of the person or the child shall be notified of the right to have counsel, and if they request counsel and are financially unable to employ counsel, counsel shall be appointed by the court. Notice of this provision shall be contained in the summons. In all actions counsel shall be appointed for the child.

2. When the parent is a minor the court shall appoint a guardian ad litem to represent such minor parent.

3. The hearing shall be held as expeditiously as possible.

4. Court costs shall be paid by the county in which the proceeding is instituted, except that the court may require the agency or person having, or receiving, legal or actual custody to pay the costs.

Initially, we consider it pertinent to note the following: (1) Section 211.462(4), RSMo. 1978, mentions that court costs shall be paid by the county unless the agency is ordered to pay costs (Thus, the word “court” is deleted in the second instance, and not used in conjunction with the word “cost,” so as to comprise the term “court costs.”)', (2) Section 211.462, RSMo. 1978 expressly provides for appointment of an attorney to represent the natural parents in this case, as well as the child (See, Labor’s Educational & Political v. Danforth, 561 S.W.2d 339, 350 (Mo.banc 1978), wherein “costs” were said to include attorney’s fees although not assessable against the state.); and, (3) Section 527.100, RSMo. 1978, which relates to costs involved in declaratory judgments, includes attorney’s fees as costs. Danforth, supra.

Section 211.462, RSMo. 1978, requires the appointment of attorneys to represent the respective interests of the minor mother and the indigent father. This same statute further specifies that the agency or person receiving custody of the child shall, when ordered, pay “costs.” Compensation to attorneys, who performed services the statute necessitated, would appear a predictable “cost,” and contemplated by the legislature as a reasonable corollary to effectuate the statute’s designs. This state has, on numerous occasions, recognized and reiterated the principle that courts of general jurisdiction possess the inherent power to pursue activities deemed reasonably necessary to preserve their existence and function as courts, which includes the right to appoint individuals requisite to their continued function. See, State ex rel. Weinstein v. St. Louis County, 451 S.W.2d 99, 102 (Mo.banc 1970). Also, see, State v. Green, 470 S.W.2d 571 (Mo.banc 1971); State ex rel. Gibson v. Grimm, 540 S.W.2d 17 (Mo.banc 1976).

Agency is hereby ordered to pay $100.00 as and for attorney’s fees to indigent father’s court-appointed counsel. Agency is further ordered to pay $100.00 as and for attorney’s fees to mother’s guardian ad li-tem ($200.00 total). Inasmuch as agency has already tendered this amount to the court clerk, the clerk is hereby ordered to transmit the above amounts to the attorneys mentioned. In all other particulars, the judgment is affirmed.

Affirmed.

REINHARD, J., concurs. SNYDER, J., dissents in separate dissenting opinion.

1 . Agency’s brief (and specifically its points relied on) makes no challenge to the award of L. L. R.’s guardian ad litem fees. Accordingly, our review is not addressed to this guardian ad litem fee, award.