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N.J. Superior Court, Appellate Division A-6682-03T2; Appellate Division; opinion by Wefing, P.J.A.D.; decided and approved for publication February 22, 2005. Before Judges Wefing, Fall and Payne. On appeal from the Chancery Division, Family Part, Bergen County, No. FD-02-868-04. [Sat below: Judge Torack.] DDS No. 20-2-9318 Plaintiffs Renee and Jack Mizrahi filed a complaint seeking to establish their rights under N.J.S.A. 9:2-7.1, which affords visitation rights to grandparents. The central person to this appeal is Raquel, plaintiffs’ 7-year-old granddaughter. Her mother, Genevieve Rodriguez, who died in September 2001, lived for approximately one year with Maurice Mizrahi, plaintiffs’ son. Raquel was born of that relationship. Defendant Rose Ann Cannon is Genevieve’s maternal aunt; defendant James Cannon is married to Rose Ann. Maurice has a variety of serious emotional and psychological problems. When Raquel was approximately 3 months old, he assaulted Genevieve. From that point forward, she was committed to preventing him from having any contact with Raquel. She obtained restraining orders against him, barring him from any contact with her or with Raquel. Renee admitted that after Genevieve and Maurice separated, she made many attempts to convince Genevieve to reconcile with him. Genevieve was adamant that neither she nor Raquel would have anything to do with him. Two other issues divided the parties. Plaintiffs are devout Orthodox Jews; Genevieve was a devout Roman Catholic. She wished Raquel to be raised as a Catholic. Defendants are Raquel’s godparents and Raquel is enrolled in a Catholic elementary school. The other divisive item was money. Genevieve struggled to make ends meet. Maurice contributed nothing for Raquel’s support. Renee testified that she and her husband paid many of Genevieve’s expenses and contributed money toward necessities, such as diapers for the baby. When Raquel was 2 years old, Genevieve was diagnosed with cervical cancer. She began a debilitating course of chemotherapy and radiation. Her mother, Barbara Panza, and defendants actively helped her care for Raquel. Genevieve decided that she wanted the Cannons to care for Raquel after her death, and they agreed to do so. In February 2001, Genevieve decided it would be best for Raquel to move in with the Cannons. She has resided with them continuously since then. Shortly before Genevieve’s death, the Cannons filed an application seeking custody of Raquel. An order granting custody was entered in January 2002. Renee testified she saw Raquel three times in 2001. The first was in January. The next time was in September 2001 at Genevieve’s funeral. Renee testified that Genevieve had told her that she was going to receive an inheritance and they would be repaid for the money they had advanced to her. She also testified that Genevieve had said she had an ancestor who was Jewish. At the end of the funeral service, Renee approached Barbara to ask about this inheritance and being repaid and if it were true that one of Genevieve’s relatives had been Jewish. After that encounter, plaintiffs visited Raquel three times: in November 2001, January 2002, and the spring or summer of 2002. According to the Cannons, these visits were unsuccessful. They testified that the Mizrahis did not engage Raquel but remained somewhat aloof. They also testified that Raquel did not want to go, and her unwillingness deepened with each occasion. They said that she was withdrawn and timid during these visits and that after them, she was fearful and anxious and needed constant reassurances that she would not have to leave the Cannons. She also would wake up with nightmares, which she never did otherwise. The Cannons decided that it was not in Raquel’s interest to continue these visits. They were also concerned that the Mizrahis would attempt to facilitate contact between Raquel and Maurice and would attempt to turn Raquel to Judaism. In February 2004, the Mizrahis filed their complaint seeking grandparent visitation. In April, the Cannons filed a complaint seeking to adopt Raquel. The Mizrahis did not contest the adoption. In July 2004, the trial court entered judgment directing defendants to submit a proposed visitation schedule and engage in reunification therapy. The Cannons appealed. In October, a judgment of adoption was entered, which provided that “all relationships between this child and biological parents shall be terminated, as well as all rights, duties and obligations of any person founded upon such relationship. … “ On appeal, the Cannons assert that in light of the completed adoption, plaintiffs have no further right to seek visitation and that they failed to meet their burden of proof that Raquel would suffer harm if visitation were not permitted. The trial of this matter was brief. Apart from the parties, the only other witness was Genevieve’s mother. Both sides presented starkly different versions of the relationship that existed between Genevieve and plaintiffs, and plaintiffs and Raquel. The trial court did not resolve all of the factual disputes but did find the existence of “a warm, close, loving relationship between the Mizrahis, Raquel and Genevieve” until January 2001. There is support in the record for that finding and it is binding on appeal. The Cannons’ first argument revolves around In re Adoption of Child by W.P., 163 N.J. 158 (2000), which held that a child’s biological grandparents were not entitled to grandparental visitation under N.J.S.A. 9:2-7.1 over the objections of nonrelative adoptive parents. There, J.H. and T.S., the parents of V., were unmarried. By the time V. was 6 months old, T.S. was in prison and J.H. placed her with W.P. and M.P. J.H. consented to W.P. and M.P. adopting V., and her parental rights were terminated. W.P. and M.P. filed a complaint to adopt V. T.S. objected. His parents K.S. and M.S. were permitted to intervene in the adoption proceeding, seeking visitation. Ultimately, T.S.’s parental rights were terminated, but his parents continued to seek visitation. W.P. concluded “that the overriding public policy and statutory law regarding adoptions preclude the application of the Grandparent Visitation Statute when the child is adopted by intact, non-relative adoptive parents.” Id. at 163. It stressed the “importance of preserving adoptive parents’ autonomy in raising their child after the parental rights of biological parents are terminated” and the need to avoid “post-adoption disruptions in their relationship with adoptive children.” Id. at 173. The Cannons note the similarity between their situation and W.P. One of the reasons the adoptive parents in W.P. did not want further contact between V. and T.S.’s parents was their fear that T.S. was “a continuing threat to V’s safety and well-being.” Id. at 174. W.P. recognized that “the grandparents’ visitation may provide unsupervised opportunity for TS to have association with V, even though his parental rights have been severed based on parental unfitness.” Id. at 175. The Cannons have similar fears. W.P. also noted that “[a]n adoptive family must be given the right to grow and develop as an autonomous family, and must not be tied to the very relationship that put the child in the position of being adopted.” Ibid. The Cannons contend that to order visitation here would denigrate their autonomy in raising Raquel and lessen their parental authority. They stress that they have made a judgment, as her parents, that visits with the Mizrahis cause her emotional distress and that the best thing for her is to forgo any contact. Maurice’s parental rights have been terminated, they note, and thus the Mizrahis, whose rights must be deemed derivative through him, have no right to visit with Raquel over their objection. The Mizrahis contend that W.P. is not controlling because it carefully restricted its opinion to the instance of nonrelative adoption. They rely on Mimkon v. Ford, 66 N.J. 426 (1975). In that case, Jill lived with her mother and maternal grandmother, Rose, from her birth until her mother’s death when she was 4 years old. She then went to live with her father. Her stepmother adopted her. Jill’s maternal grandmother wanted to continue to visit her and her father and stepmother objected. Mimkon noted that at common law a grandparent did not have a right of visitation in the face of parental objection unless the best interest of the child called for such visitation. It relied on 9:2-7.1 to hold that the grandmother had independent rights that were not affected by Jill’s adoption. Neither Mimkon nor W.P. is precisely on point. A determination that W.P. controls could be interpreted as a significant extension of the holding in that case. It is not necessary to reach such an expansive determination because plaintiffs have failed to carry their required burden of proof. After W.P., Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), again considered contested grandparent visitation. In the interim, Troxel v. Granville, 530 U.S. 57 (2000), had struck down Washington’s grandparent visitation statute as a violation of a parent’s fundamental due process rights. The dispute in Moriarty revolved around visitation with two teenagers. The plaintiff was the children’s father; the defendants were the parents of their deceased mother who had a long-standing substance abuse problem. When the judgment of divorce was entered, the plaintiff was given sole custody of the children. The defendants were actively involved with their grandchildren, however. When the father sought to severely limit the grandparents’ visitation as not being in the children’s best interests, the grandparents sought judicial relief. The Court concluded that “grandparents seeking visitation under the statute must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “When no harm threatens a child’s welfare, the State lacks a sufficiently compelling justification for the infringement on the fundamental right of parents to raise their children as they see fit. … [I]nterference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child.” Id. at 115. The Court stressed that “a dispute between a fit custodial parent and the child’s grandparent is not a contest between equals. … [T]he best interest standard, which is the tiebreaker between fit parents, is inapplicable when a fit parent is in a struggle … with a third party.” Id. at 116. In Moriarty, the children had a “very extensive relationship with the grandparents,” id. at 118, which continued through the litigation. There was testimony that the children’s relationship with their grandparents served as a link with their mother, whose death was very upsetting for them, and that the constricted visitation the father wished would work psychological harm on them. The Court concluded that “visitation with the grandparents was necessary to avoid harm to the children.” Id. at 122. Here, although the trial court recognized the language in Moriarty requiring grandparents to demonstrate by a preponderance of the evidence that visitation with a grandchild was necessary to avoid harm to her, it analyzed the record in terms of Raquel’s best interests, rather than whether she would experience harm if she did not visit with plaintiffs. The trial court concluded that Raquel, without visitation, would experience many, if not all, of the 18 harms the Mizrahis’ attorney had listed. These included loss of Jewish heritage and heredity, probability of guilt and feeling of inadequacy caused by perceived desertion of father and his parents, confusion over the fact that the maternal grandmother is very much in her life whereas paternal grandparents are not, and loss of potentially happy memories of good times which might have been spent with the paternal grandparents. Held: Grandparents seeking visitation under 9:2-7.1 in the wake of Moriarty must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with a parent’s fundamental due process right to raise a child free from judicial interference and supervision. Conclusory, generic items, such as “loss of potentially happy memories,” are not a sufficient basis to warrant such an intrusion into a parent’s decision-making. There was no evidence that Raquel would experience guilt or inadequacy if visitation did not occur; that she could experience confusion over the fact that she saw her maternal grandmother, but not the Mizrahis; that as she grew older, she would not be able to learn about Jewish heritage and tradition; that she will experience a void in her life if she does not visit with the Mizrahis; or that, as she got older, she would experience feelings of rejection. Nor was there any evidence that she would suffer economically. There is no doubt that it is painful for the Mizrahis not to see Raquel. The harm to which Moriarty refers, however, and which must be proved, is harm to the child, not harm to the grandparents. That the Mizrahis may have had a warm relationship with Raquel until January 2001 does not mean that she will experience harm now if visitation is not ordered. Genevieve trusted the Cannons to raise Raquel. She trusted their discretion and their judgment. They have decided that forced visitation is harmful to Raquel. Plaintiffs failed to prove that harm would inure to Raquel if she did not visit them at this time. Reversed. � Digested by Judith Nallin [The slip opinion is 20 pages long.] For appellants � William T. Smith (Hook, Smith & Meyer). For respondents � Richard C. McDonnell (McDonnell & Whitaker).

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