106 So. 3d 1121
La. Ct. App.2012Background
- DCFS was involved in a child in need of care proceeding; during the case, the mother executed a voluntary surrender of parental rights.
- DCFS sought to appoint a curator for the absent father under La.Ch.C. art. 1136; a new case (11-PP-06) was opened for this purpose.
- Cynthia Samuel was appointed curator; a parallel case (11-TP-17) sought termination of parental rights for the father.
- Samuel could not locate the father and filed an affidavit; she sought payment of her curator fee from DCFS, which DCFS refused.
- The juvenile court ordered DCFS to pay the curator’s fee and additional attorney fees incurred in pursuing payment; DCFS appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is DCFS liable for the curator’s fee and related costs? | DCFS argues statutory payment under 2010 regime to public defenders; payments should not come from DCFS. | Samuel argues curator fees are mandated costs shifted to the plaintiff; indigence is irrelevant to curator duties. | Yes; DCFS liable for curator fee and litigation costs. |
| Can the reasonableness of the curator’s fees be Rule-raised on appeal? | DCFS did not challenge reasonableness in the juvenile court; argues it cannot be raised now. | Not explicitly stated, but court noted issue not raised below should not be raised on appeal. | No; reasonableness not reviewable on appeal. |
Key Cases Cited
- Johnson v. Jones, 170 La. 760, 129 So. 155 (La. 1930) (curator duties and indigence considerations limited)
- Lovett v. Brown, 879 So.2d 406 (La.App. 3 Cir. 2004) (allows additional attorney fees for fee collection)
- State, DOTD v. Falcone, 487 So.2d 588 (La.App. 4 Cir. 1986) (adequacy of costs and fees in litigation context)
- Azreme, Corp. v. Esquire Title Corp., 731 So.2d 422 (La.App. 5 Cir. 1999) (procedural limits on challenging fees on appeal)