RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3486-14T4

IN THE MATTER OF THE 

ADOPTION OF A CHILD BY

M.E.B. and K.N.

_______________________________

Argued December 7, 2015 - Decided 

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 

APPROVED FOR PUBLICATION

January 29, 2016

APPELLATE DIVISION

January 29, 2016
2 A-3486-14T4

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. 
3 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. 
4 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. 
5 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. 
6 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 crossexamine 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[,]" 
7 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.]
8 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).
9 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. 
10 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 
11 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."). 
12 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. 
13 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. 
14 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.