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

130 A.3d 1262, 444 N.J. Super. 83, 2016 N.J. Super. LEXIS 21

• Court: New Jersey Superior Court Appellate Division
• Decided: January 29, 2016
• Docket: A-3486-14T4
• Status: Published

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

2 A-3486-14T4 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.]

7 A-3486-14T4 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.

14 A-3486-14T4