In the Matter of the Adoption of a Child by M.E.B.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3486-14T4
APPROVED FOR PUBLICATION
IN THE MATTER OF THE
ADOPTION OF A CHILD BY January 29, 2016
M.E.B. and K.N.
APPELLATE DIVISION
_______________________________
Argued December 7, 2015 - Decided January 29, 2016
Before Judges Lihotz, Fasciale and Nugent.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris
County, Docket No. FA-14-51-15.
Jason R. Melzer argued the cause for
appellants M.E.B. and K.N. (Cole Schotz,
P.C. and Guston & Guston, LLP, attorneys;
Joseph Barbiere, Mr. Melzer and Debra E.
Guston, of counsel and on the briefs; Nicole
G. McDonough, on the briefs).
Jani Wase Vinick argued the cause for
respondent S.D.G. (Haber Silver & Simpson,
attorneys; Karin Duchin Haber, of counsel;
Ms. Vinick, on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
In this matter we review the required procedure to be
followed when a party requests ex parte relief. We conclude
plaintiffs' fundamental due process rights were trammeled as
they were denied an opportunity to be heard prior to the
dismissal of their complaint, with prejudice. We reverse and
vacate the order and remand the matter to the Assignment Judge
for reassignment to a different Family Part judge to conduct
further proceedings.
After briefly reciting the facts underlying the filing of
this action, we concentrate our recitation on the procedural
missteps that led to the entry of the March 19, 2015 order
dismissing plaintiffs' complaint.
On February 20, 2015, plaintiffs M.E.B. and K.N., who live
in Woodstock, New York, filed a verified complaint for adoption
of their grandchild, naming the child's mother, S.D.G., and the
child's father, R.C.N.-B., as defendants. Plaintiffs' complaint
recited they "received the child into their care by verbal and
implied consent of the child's birth parents[,]" who refused to
contribute to or provide for the needs of the child, and
"abandoned" the child to their care. Plaintiffs asserted
defendants engaged in substance abuse and demonstrated other
parental deficits, making them unable to provide the child with
a stable and permanent home. Although they acknowledged the
maternal grandparents contributed to the child's care during
this time, plaintiffs asserted they too failed to act in the
child's best interests and had suggested they neither wanted
custody nor the responsibility of full-time care.
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Once the complaint was filed, an order for preliminary
hearing was issued, dated March 6, 2015. The order declared the
child a ward of the court and placed the child in plaintiffs'
temporary custody. Further, an agency investigation along with
criminal and child abuse clearances were ordered. A hearing was
scheduled for April 17, 2015.
When S.D.G. was served with the complaint and the
preliminary order, she filed an ex parte order to show cause
accompanied by certifications refuting the allegations of
abandonment and asserted she never relinquished custody or
abdicated her parental obligations. R.C.N.-B. supported the
request for the child's immediate return to S.D.G.'s residential
custody in her parents' home and for plaintiffs to be restrained
from further contact with S.D.G. and the child.1
The ex parte proceeding was held on March 19, 2015. The
judge found defendants' testimony credible, determined
plaintiffs' complaint contained misrepresentations, and
suggested the action was "a premeditated effort . . . to
unlawfully obtain custody of [the child]." The judge further
concluded the complaint was legally insufficient, stating it was
"clear that adoption cannot possibly go forward." The judge
1
R.C.N.-B. testified he had not been served with the
complaint, but received the preliminary order.
3 A-3486-14T4
vacated the March 6, 2015 order granting plaintiffs' temporary
custody then, sua sponte, dismissed the adoption complaint with
prejudice, stating plaintiffs lacked standing.
Plaintiffs appeal from the portion of the March 19, 2015
order dismissing their complaint with prejudice.2 They assert
notice of that hearing was not afforded, which denied them an
opportunity to be heard. Substantively, plaintiffs argue the
judge's conclusions regarding standing and the sufficiency of
their complaint were flawed. During argument before this court,
plaintiffs clarified they seek only to vacate the provision of
dismissal and do not request return of custody at this time.
S.D.G. responds, asserting the judge correctly determined
plaintiffs lacked standing to proceed because the child was
never placed in their care for adoption, making dismissal
proper.
The issues presented on appeal require legal
determinations, subject to our de novo review. We do not defer
to "[a] trial court's interpretation of the law and the legal
consequences that flow from established facts." Estate of
2
While this appeal was pending, defendants moved to sanction
plaintiffs' counsel, asserting plaintiffs lacked standing to
file the complaint and the action was frivolous. The motion was
denied without prejudice pending appeal.
4 A-3486-14T4
Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010)
(citations omitted).
The United States Supreme Court has recognized the due
process guarantee expressed in the Fourteenth Amendment to the
United States Constitution includes "the requirement of
'fundamental fairness'" in a legal proceeding. Lassiter v.
Dep't of Soc. Servs., 452 U.S. 18, 24, 101 S. Ct. 2153, 2158, 68
L. Ed. 2d 640, 648 (1981). See U.S. Const. amend. XIV, § 1.
Our Supreme Court has engrafted these protections upon Article
I, Paragraph 1 of the State Constitution, concluding it also
"'protect[s] against injustice and, to that extent, protect[s]
values like those encompassed by the principle[s] of due
process[,]'" even though the provision "does not expressly refer
to the right to due process of law[.]" Crespo v. Crespo, 408
N.J. Super. 25, 34 (App. Div. 2009) (third alteration in
original) (quoting Doe v. Poritz, 142 N.J. 1, 99 (1995)), aff'd
o.b., 201 N.J. 207 (2010).
A litigant in civil proceedings is entitled to a fair
hearing, imbued with the protections of due process. D.N. v.
K.M., 429 N.J. Super. 592, 602 (App. Div. 2013), certif. denied,
216 N.J. 587 (2014). In the context of litigation, fundamental
due process demands a party be given adequate notice and a
reasonable opportunity to be heard. Ewing Oil, Inc. v. John T.
5 A-3486-14T4
Burnett, Inc., 441 N.J. Super. 251, 260 (App. Div. 2015). See
also Doe, supra, 142 N.J. at 106 ("Fundamentally, due process
requires an opportunity to be heard at a meaningful time and in
a meaningful manner."). Additionally, due process protections
encompass "procedural safeguards including the right to cross-
examine adverse witnesses and the right to call witnesses."
Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005).
See A.B. v. Y.Z., 184 N.J. 599, 604 (2005) ("[D]ue process
guarantees civil litigants a measure of confrontation."); H.E.S.
v. J.C.S., 175 N.J. 309, 321-23 (2003).
Rule 1:6-2(a) incorporates these protections when an
emergent application is filed, stating:
An application to the court for an order
shall be by motion, or in special cases, by
order to show cause. A motion, other than
one made during a trial or hearing, shall be
by notice of motion in writing unless the
court permits it to be made orally. Every
motion shall state the time and place when
it is to be presented to the court, the
grounds upon which it is made and the nature
of the relief sought . . . .
Further, "[d]uring the pendency of an action," Rule 4:52-2
permits a party to seek "a temporary restraint or an
interlocutory injunction . . . by motion or by order to show
cause," following the procedures outlined in Rule 4:52-1.
Understanding "a court of equity ordinarily has broad
discretion in determining whether to grant injunctive relief[,]"
6 A-3486-14T4
Bubis v. Kassin, 353 N.J. Super. 415, 424 (App. Div. 2002),
nevertheless, prior to issuing an order to show cause with
restraints, a judge must conduct a proceeding, which "shall be
recorded verbatim" unless a sound recording device is
unavailable. R. 4:52-1(a). See also R. 1:2-2 ("Ex parte
proceedings pursuant to R. 4:52 and R. 4:67 shall . . . be
recorded verbatim subject to the availability of either a court
reporter or a recording device."). The rule also mandates
applications for injunctive relief "shall not, however, include
any temporary restraints or other interim relief unless the
defendant has either been given notice of the application or
consents thereto." R. 4:52-1(a) (emphasis added).
The prior notice provision is not inflexible. The rule
permits judicial review absent compulsory notice if
it appears from specific facts shown by
affidavit or verified complaint that
immediate and irreparable damage will
probably result to the plaintiff before
notice can be served or informally given and
a hearing had thereon. If the order to show
cause includes temporary restraints or other
interim relief and was issued without notice
to the defendant, provision shall be made
therein that the defendant shall have leave
to move for the dissolution or modification
of the restraint on 2 days' notice or on
such other notice as the court fixes in the
order.
[Ibid.]
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As required by Rule 1:7-4,3 specific factual findings
underpinning the legal conclusions must be made by the judge
during the recorded ex parte proceeding, which show "immediate
and irreparable damage will probably result to the [requesting
party] before notice can be served or informally given and a
hearing" conducted. R. 4:52-1(a). Once entered, any order to
show cause "shall be served upon defendant together with a copy
of the complaint and any supporting affidavits at least 10 days
before the return date and in the manner prescribed by" the
rules governing service of actions. R. 4:52-1(b).
It is one thing to schedule ex parte review of an
application initiated by an order to show cause that also seeks
temporary restraints; it is quite another to terminate the
litigation on an ex parte basis. If a party demonstrates the
need for ex parte relief, the judge considers the matter on the
record and, upon a specific finding that immediate and
irreparable harm would result were notice given, could issue an
order to show cause. The adverse party must then be given an
opportunity to be heard, including the chance to show injunctive
relief was inappropriate or improvidently granted. See Cardillo
3
Rule 1:7-4(a) requires a trial judge to describe, by oral
opinion or memorandum of decision, facts found, supported by
competent evidence in the record, and conclusions of law drawn
substantiating the relief awarded to the prevailing party.
Curtis v. Finneran, 83 N.J. 563, 570 (1980).
8 A-3486-14T4
v. Bloomfield 206 Corp., 411 N.J. Super. 574, 581 (App. Div.
2010) ("The rules contemplate that upon an application for
temporary restraints only temporary relief will be granted, if
appropriate, and that a final return date will be set to
consider a final disposition."). Thus, the rule is clear, when
an injunction is requested, the proceeding to consider the order
to show cause with restraints shall be on the record, requisite
findings supporting relief must be made, and the adverse party
must be given an opportunity to be heard on the scheduled return
date. Even when restraints are not entered, the adverse party
must be given the opportunity to respond to the entry of an
order to show cause.
We now apply these requirements to the facts at hand.
Defendants moved for emergent injunctive relief without notice
to plaintiffs. It is unclear whether the order to show cause
was entered or whether the March 19, 2015 proceeding was a
scheduling date to consider the application.4 If the former, no
4
We note the form of order to show cause contained in
S.D.G.'s appendix was entered; however, as presented the order
fails to comply with Rule 4:52-4, which compels "[e]very order
granting an injunction and every restraining order shall set
forth the reasons for its issuance[.]" An order that merely
parrots irreparable harm will result, without stating the basis
for entry of relief and correlating the facts to legal
conclusions, falls short of a judge's responsibility under Rule
1:7-4(a). The record is silent on how the evidentiary hearing
date of March 19, 2015 was set.
9 A-3486-14T4
record of the proceeding was made, despite the very clear
requirement set forth in Rule 4:52-1(a).
Assuming the hearing was to consider the application for
relief, the record shows plaintiffs were not served with
defendants' pleadings or even informed an evidentiary proceeding
would be conducted on March 19, 2015. At the commencement of
the hearing, the judge neither inquired nor made findings
regarding the lack of notice to plaintiffs, except, at the
conclusion of the ex parte proceeding, she stated prior notice
to plaintiffs was "unnecessary" because she declined to grant
defendants' request for restraints. Arguably, defendants' claim
of immediate and irreparable harm if notice were given may have
been supported; however, the judge made no such finding and we
cannot infer same from this record. Moreover, we cannot
conceive of a circumstance permitting the ex parte review and
dismissal of an adverse party's pleading without notice to that
party or allowing the party to appear and defend his or her
position. See Barblock v. Barblock, 383 N.J. Super. 114, 122
(App. Div.) ("The credibility of the parties' contentions may
wither, or may be fortified, by exposure to cross-examination
. . . ."), certif. denied, 187 N.J. 81 (2006).
Also, we note the rationale for dismissal was not
articulated, except for reciting the conclusion plaintiffs
10 A-3486-14T4
lacked standing. We are left to wonder how the judge applied
Rule 4:6-2(e), what deficits were found in plaintiffs'
complaint, or what factual foundation supported this conclusion.5
The failure to perform this basic judicial function of stating
the basis supporting the ultimate order works a disservice, as
it leaves the litigants scratching their heads and severely
hinders appellate review. Curtis, supra, 83 N.J. at 570. Naked
conclusions are like a ghost ship, where "[o]ne hears the creak
of the rigging, the groan of the timber, and the muted sound of
voices through the fog -- but there is nothing solid to be
grasped." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 716 (1st
Cir. 1994). See also Pardo v. Dominguez, 382 N.J. Super. 489,
492 (App. Div. 2006) (finding a "judge's comment or question in
colloquy [cannot] provide the reasoning for an opinion, which
requires findings of fact and conclusions of law").
For all of these reasons, the March 19, 2015 order granting
final relief and dismissing plaintiffs' complaint, with
prejudice, must be vacated. On remand, we direct the Assignment
5
The judge did not identify the basis of her examination.
Under Rule 4:6-2(e) the court is bound by the four corners of
the complaint; yet here the judge's findings went beyond the
pleadings and her decision relied on defendants' unchallenged
testimony. See Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989) ("[U]nder Rule 4:6-2(e)[,]" a reviewing
court "is limited to examining the legal sufficiency of the
facts alleged on the face of the complaint.").
11 A-3486-14T4
Judge to re-assign this matter to a different judge to avoid the
appearance of bias or prejudice based upon the prior involvement
and statements regarding plaintiffs' motivation voiced by the
judge during the ex parte proceeding. Entress v. Entress, 376
N.J. Super. 125, 133 (App. Div. 2005).
We briefly address S.D.G.'s legal contentions. She
initially suggests defendants proved plaintiffs' lack of
standing to seek adoption, which fully justified dismissal of
the complaint with prejudice.6 Although we agree a lack of
standing may warrant dismissal of a complaint, see In re Ass'n
of Trial Lawyers of Am., 228 N.J. Super. 180 (App. Div.),
certif. denied, 113 N.J. 660 (1988), dismissal here cannot be
upheld because it was premised upon defendants' unchallenged
testimony, offered in an ex parte hearing. We wholeheartedly
reject, as untenable, a proposition suggesting a court can
dismiss a filed complaint, with prejudice, without allowing
plaintiffs the opportunity to defend the sufficiency of their
claims. "Shortcuts should not be utilized at the expense of
6
Standing for adoption is set forth in N.J.S.A. 9:3-43. See
also In re Adoption of Two Children by H.N.R., 285 N.J. Super.
1, 7 (App. Div. 1995). Further, N.J.S.A. 9:3-48 governs
procedures for a private adoption. N.J.S.A. 9:3-46 addresses a
parent's objection to a request for adoption.
12 A-3486-14T4
justice." Klier v. Sordoni Skanska Const. Co., 337 N.J. Super.
76, 83 (App. Div. 2001).
S.D.G. also advances the argument that dismissal was
required under Rule 5:10, which implies as a prerequisite to
filing a complaint for adoption, evidence the child is
"available for adoption" after having been "placed for
adoption." She further notes defective adoption complaints may
be dismissed by the court, ex parte, pursuant to Rule 5:10-
4(b)(3). We reject these contentions.
Rule 5:10-3 aids implementation of the Adoption Act,
N.J.S.A. 9:3-37 to -56, by defining the contents of a complaint.
The statute defines "placement for adoption" as "the transfer of
custody of a child to a person for the purpose of adoption by
that person[.]" N.J.S.A. 9:3-38(g). The factual circumstances
of why the child was in plaintiffs' care or whether plaintiffs
proved their right to relief were disputed. The resolution of
material facts must be made by a factfinder after consideration
of evidence offered not only by defendants, but also by
plaintiffs. Further, if the underlying facts are undisputed,
our rules include the procedure for requesting summary judgment.
R. 4:46-1. In each case, the court must afford both sides
notice and the opportunity to be heard.
13 A-3486-14T4
The rules also provide for the court's review of adoption
complaints prior to docketing and execution of a preliminary
order. See R. 5:10-4(a). Questions raised regarding
jurisdiction or the sufficiency of the factual basis supporting
relief may be considered by the judge, as directed by Rule 5:10-
4(b)(3). The preliminary rejection of a pleading as
insufficient should be accompanied by a statement identifying
deficiencies or a request for an amended complaint. In either
case, dismissal of the action must be without prejudice. Ibid.Once a complaint has been docketed, however, proceedings shall
be conducted on notice to all parties giving those who appear
the opportunity to be heard.
Reversed and remanded with directions the matter be
reassigned.
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