                             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                    NOT FOR PUBLICATION WITHOUT THE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
