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Mizrahi v. Cannon

February 22, 2005

RENEE MIZRAHI AND JACK MIZRAHI, PLAINTIFFS-RESPONDENTS,
v.
JAMES CANNON AND ROSEANN CANNON, DEFENDANTS-APELLANTS.



On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, No. FD-02-868-04.

Before Judges Wefing, Fall and Payne.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 12, 2005

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. Following a bench trial, the trial court entered a judgment directing defendants James and Rose Ann*fn1 Cannon to submit a proposed visitation schedule and engage in reunification therapy. The Cannons appeal from portions of that judgment. We stayed the judgment and accelerated the Cannons' appeal. After reviewing the record in light of the contentions advanced on appeal, we reverse.

The central person to this appeal is Raquel, the seven year-old granddaughter of the Mizrahis. Raquel's mother was Genevieve Rodriguez, who died from cervical cancer on September 21, 2001, at the age of thirty-seven. Genevieve lived for approximately one year with Maurice Mizrahi, the son of Renee and Jack. Raquel was born of that relationship.

Defendant Rose Ann Cannon is the sister of Genevieve's mother and is thus Genevieve's maternal aunt and Raquel's great aunt; defendant James Cannon is married to Rose Ann. The record is clear that Genevieve had a very close relationship with her aunt and uncle, which was only strengthened by her illness.

Maurice has a variety of serious emotional and psychological problems. He has abused drugs and alcohol for years, and he is a cross-dresser. When Raquel was approximately three months old, Maurice assaulted Genevieve, and Genevieve told him he had to leave. From that point forward, Genevieve was committed to preventing Maurice from having any contact with Raquel. He physically attacked Genevieve more than once; on one of those occasions Genevieve was holding the infant Raquel. Genevieve ultimately found it necessary to obtain restraining orders against Maurice, barring him from any contact with her or with Raquel. One such order was entered in June 1998 in Kings County, another in December 1998 in New York County.

Renee Mizrahi admitted that after Genevieve separated from Maurice, she made many attempts to convince Genevieve to agree to a reconciliation with her son. Genevieve, however, was adamant that neither she nor Raquel would have anything to do with Maurice.

In addition to Maurice, two other issues divided the parties. The Mizrahis are devout Orthodox Jews while Genevieve was a devout Roman Catholic. Genevieve wished Raquel to be raised as a Catholic. The Cannons were Raquel's godparents when she was baptized, and Raquel is enrolled in a Catholic elementary school. The Cannons testified that Genevieve told them that Jack Mizrahi would not enter her apartment because of the religious objects she displayed. Renee denied that but did say that before Genevieve became ill, Genevieve would take down such items in advance of their visiting.

The other divisive item was money. Genevieve did not work after Raquel was born and struggled to make ends meet. Maurice contributed nothing for his daughter's support. Renee Mizrahi testified that she and her husband paid many of Genevieve's expenses, such as rent and utilities, and would contribute money toward necessities, such as diapers for the baby. Although the trial court did not permit a full record to be developed on the issue, it is fairly inferable from what was presented that the Mizrahis were able to make these contributions without suffering any financial discomfort.

In September 1999, when Raquel was only two years old, Genevieve was diagnosed with Stage III cervical cancer. The cancer was deemed inoperable, and Genevieve began a debilitating course of chemotherapy and radiation. Genevieve's mother and the Cannons were actively involved in assisting Genevieve in caring for Raquel. Initially, when Genevieve was hospitalized for these treatments or their aftermath, Raquel would stay with Barbara Panza, Genevieve's mother. When Genevieve would be home from the hospital, her mother would be at her apartment every day to assist her. In October and November 2000 Genevieve and Raquel spent six weeks with the Cannons when Genevieve had reached a point she could not care for Raquel, and Barbara Panza could not care for Genevieve and Raquel by herself. Shortly before Thanksgiving, Genevieve improved somewhat, and she and Raquel returned to Genevieve's apartment. In February 2001, Genevieve again began to deteriorate. Genevieve had already decided that she wanted the Cannons to care for Raquel after her death, and they agreed to do so. In February 2001, when she was hospitalized on an emergency basis, Genevieve decided it would be best for Raquel to move in with the Cannons at that point and not experience further disruption. Raquel has resided with them continuously since then.

Shortly before Genevieve's death, the Cannons filed an application seeking custody of Raquel. An order granting them that custody was entered in January 2002.

According to the testimony of Renee Mizrahi, she saw Raquel three times in 2001. The first was in January. She had no contact with Raquel between January 2001 and September 2001, when she saw Raquel at Genevieve's funeral. There was no testimony that Raquel showed any reaction to seeing her grandmother that day.

Barbara Panzer and Renee Mizrahi did speak that day, but with unfortunate results. As we noted earlier, the Mizrahis had advanced money to help Genevieve and, on occasion, had asked Genevieve about being repaid. Renee Mizrahi testified that Genevieve had told her that she was going to receive an inheritance from a relative and the Mizrahis would be repaid. Renee Mizrahi also testified that Genevieve had told her on one occasion that she had an ancestor who was Jewish. At the conclusion of the funeral service, which had taken place at Genevieve's parish church, Renee Mizrahi approached Barbara Panzer to inquire about this inheritance and being repaid the money she and her husband had contributed to Genevieve's care. She also asked if it were true that one of Genevieve's relatives had been Jewish. Ms. Panzer was upset by these questions.

After that encounter, Renee Mizrahi called the Cannons to inquire about visiting with Raquel. Three such visits occurred, all in New York City. The first, in November 2001, was at the Children's Museum, the second, in January 2002, at the Museum of Natural History, and the third, in the spring or summer of 2002, at the Central Park Zoo.

According to the Cannons, these visits were unsuccessful. They testified that the Mizrahis did not engage Raquel during these visits but remained somewhat aloof from her. They also testified that Raquel did not want to go, and her unwillingness deepened with each occasion. The Cannons said that Raquel is normally an outgoing, friendly child but that she was withdrawn and timid during these visits. The Cannons testified that after the visits, Raquel was fearful and anxious and needed constant reassurances that the Cannons would continue to care for her and that she would not have to leave them. Following these visits, Raquel would wake up with nightmares, which she never did otherwise, even during her mother's illness and after her death.

Renee Mizrahi and Rose Ann Cannon had several telephone conversations in the months after Genevieve died. These conversations did nothing to bridge the gulf that separated these families. During one telephone call, Renee Mizrahi requested Raquel's social security number and asked about the possibility of the Mizrahis claiming Raquel as a dependent on their income taxes in light of the funds they had previously advanced to Genevieve. In another conversation, she again inquired whether Genevieve was the beneficiary of an estate and thus had funds to repay the money the Mizrahis had advanced. Renee Mizrahi also inquired whether Raquel had received a card and check that had been sent in the name of Maurice. Rose Ann remonstrated that, pursuant to the court orders, Maurice was not to have any contact with Raquel.

The Cannons decided in light of Raquel's reactions after her three visits with the Mizrahis 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. The Mizrahis denied any such intent.

In February 2004, the Mizrahis filed their complaint seeking grandparent visitation. On April 3, 2004, the Cannons filed a complaint seeking to adopt Raquel. The Mizrahis did not contest the adoption. Trial on the Mizrahis' complaint commenced on May 17, 2004. The trial court issued its written opinion on June 18, 2004, and entered its judgment on July 6, 2004. On August 6, 2004, the Cannons appealed. On September 30, we granted the Cannons' motion for a stay of the judgment and to accelerate the appeal. On October 1, 2004, a judgment of adoption was entered, which provided:

1. Said child shall be adopted by the plaintiffs, James Cannon and Rose Ann ...


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