In re K.C.

[Cite as In re K.C., 2013-Ohio-1949.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
K.C. : CASE NO. CA2012-08-160
: OPINION
5/13/2013
:
:
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JS2011-1044
Thomas E. Strinko, 8120 S.W. 178th Street, Palmetto Bay, Florida 33157, appellant, pro se
Roy D. Wasson, 28 West Flagler Street, Suite 600, Miami, Florida 33130, for appellees
PIPER, J.
{¶ 1} Appellant, Thomas Strinko (Grandfather), appeals a decision of the Butler
County Court of Common Pleas, Juvenile Division, ordering supervised visitation between
himself and his granddaughter, K.C.
{¶ 2} Grandfather's daughter, Sontha Strinko (Mother), gave birth to K.C. when
Mother was not married to K.C.'s father, Nicholas Caraisco (Father). Mother allowed
Grandfather to visit with K.C. on multiple occasions, but then declined to allow Grandfather to
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have unsupervised visits with K.C. after an incident where Grandfather kissed K.C. on the
lips when Mother was out of the room.
{¶ 3} Grandfather filed a complaint for visitation in the juvenile court and the matter
proceeded to a hearing before the magistrate. At the time of the hearing, K.C. was four
years old. A few weeks before the hearing, Mother moved to North Carolina with K.C., and
began living with a male "friend." Grandfather and his wife, who is not Mother's biological
mother, live in Florida. Due to the distance between North Carolina and Florida, (or Ohio and
Florida), Grandfather requested long blocks of visitation scheduled over four-day periods
each month, as well as two weeks of visitation each summer and winter.
{¶ 4} During the hearing, Mother and Grandfather appeared and were each
represented by counsel. Father sent a letter to the court but did not personally appear. In
Father's letter, he stated that he had received service of Grandfather's complaint for
visitation, and that he did not support unsupervised visitation between Grandfather and K.C.
Mother and Grandfather presented evidence, and the magistrate denied Grandfather's
complaint for visitation. Grandfather then filed objections to the magistrate's decision. The
trial court held a hearing on Grandfather's objections, and overruled the objections in part
and sustained them in part. The trial court then ordered supervised visitation between
Grandfather and K.C.
{¶ 5} Grandfather appealed the trial court's decision after dismissing his counsel.
Proceeding pro se, Grandfather filed a nonconforming brief with this court, which lacked
enumerated assignments of error. Mother then moved to dismiss Grandfather's appeal
based on Grandfather's deficient brief. However, this court denied Mother's motion to
dismiss, finding instead that Grandfather's brief, while technically lacking enumerated
assignments of error, did set forth an argument that the trial court erred in ordering
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supervised visitation with K.C. We will therefore address Grandfather's arguments as they
relate to the following general assignment of error.
{¶ 6} THE TRIAL COURT ERRED IN DENYING APPELLANT UNSUPERVISED
COMPANIONSHIP VISITATION WITH HIS GRANDDAUGHTER.
{¶ 7} Grandfather's arguments essentially challenge the trial court's decision to grant
supervised visitation with K.C. rather than granting unsupervised visitation according to the
visitation schedule Grandfather suggested to the court.
{¶ 8} According to R.C. 3109.12(A), "if a child is born to an unmarried woman, the
parents of the woman * * * may file a complaint requesting the court of common pleas of the
county in which the child resides to grant them reasonable companionship or visitation rights
with the child."1 In order to determine whether a grandparent should have reasonable
companionship or visitation rights, a court must find that the factors set forth in R.C.
3109.051(B)(1)(a) through R.C. 3109.051(B)(1)(c) have been met. These factors include,
(a) The grandparent, relative, or other person files a motion with
the court seeking companionship or visitation rights.
(b) The court determines that the grandparent, relative, or other
person has an interest in the welfare of the child.
(c) The court determines that the granting of the companionship
or visitation rights is in the best interest of the child.
1. Mother and Father received leave from this court to supplement the appellate record with proof that the
parties have become married. Mother and Father's subsequent marriage set the stage for Mother to question in
her brief whether the trial court had jurisdiction to order visitation because she is no longer an unmarried woman.
However, Mother did not present this issue to the trial court for determination, nor did she assign as error to this
court that the trial court lacked jurisdiction to proceed. Even so, R.C. 3109.12(A) specifically makes reference to
a grandparent's right to request reasonable visitation should the grandchild be born to an unmarried woman.
Mother does not deny that at the time she gave birth to K.C., she was an unmarried woman. Moreover, R.C.
3109.12(B) goes on to state that "the marriage or remarriage of the mother or father of a child does not affect the
authority of the court under this section to grant the * * * relatives of the mother of the child reasonable
companionship or visitation rights with respect to the child." Therefore, the trial court had jurisdiction to
determine whether Grandfather should have visitation with K.C. according to R.C. 3109.12(A) despite Mother
and Father's subsequent marriage.
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{¶ 9} The court found that the first two conditions listed in R.C. 3109.051(B)(1)(a) and
(b) were met. In considering subsection (c), the trial court examined the best interest factors
set forth in R.C. 3109.051(D), which include,
(1) The prior interaction and interrelationships of the child with
the child's parents, siblings, and other persons related by
consanguinity or affinity, and with the person who requested
companionship or visitation if that person is not a parent, sibling,
or relative of the child;
(2) The geographical location of the residence of each parent
and the distance between those residences, and if the person is
not a parent, the geographical location of that person's
residence and the distance between that person's residence and
the child's residence;
(3) The child's and parents' available time, including, but not
limited to, each parent's employment schedule, the child's school
schedule, and the child's and the parents' holiday and vacation
schedule;
(4) The age of the child;
(5) The child's adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant
to division (C) of this section, regarding the wishes and concerns
of the child as to parenting time by the parent who is not the
residential parent or companionship or visitation by the
grandparent, relative, or other person who requested
companionship or visitation, as to a specific parenting time or
visitation schedule, or as to other parenting time or visitation
matters, the wishes and concerns of the child, as expressed to
the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to
spend with siblings;
(9) The mental and physical health of all parties;
(10) Each parent's willingness to reschedule missed parenting
time and to facilitate the other parent's parenting time rights, and
with respect to a person who requested companionship or
visitation, the willingness of that person to reschedule missed
visitation;
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(11) In relation to parenting time, whether either parent
previously has been convicted of or pleaded guilty to any
criminal offense involving any act that resulted in a child being
an abused child or a neglected child; whether either parent, in a
case in which a child has been adjudicated an abused child or a
neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of
the adjudication; and whether there is reason to believe that
either parent has acted in a manner resulting in a child being an
abused child or a neglected child;
(12) In relation to requested companionship or visitation by a
person other than a parent, whether the person previously has
been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or
a neglected child; whether the person, in a case in which a child
has been adjudicated an abused child or a neglected child,
previously has been determined to be the perpetrator of the
abusive or neglectful act that is the basis of the adjudication;
whether either parent previously has been convicted of or
pleaded guilty to a violation of section 2919.25 of the Revised
Code involving a victim who at the time of the commission of the
offense was a member of the family or household that is the
subject of the current proceeding; whether either parent
previously has been convicted of an offense involving a victim
who at the time of the commission of the offense was a member
of the family or household that is the subject of the current
proceeding and caused physical harm to the victim in the
commission of the offense; and whether there is reason to
believe that the person has acted in a manner resulting in a child
being an abused child or a neglected child;
(13) Whether the residential parent or one of the parents subject
to a shared parenting decree has continuously and willfully
denied the other parent's right to parenting time in accordance
with an order of the court;
(14) Whether either parent has established a residence or is
planning to establish a residence outside this state;
(15) In relation to requested companionship or visitation by a
person other than a parent, the wishes and concerns of the
child's parents, as expressed by them to the court;
(16) Any other factor in the best interest of the child.
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{¶ 10} The court considered the facts as they related to the factors within R.C.
3109.051(D) and found that supervised visitation was warranted. After reviewing the record,
we do not find that the trial court's decision was an abuse of discretion.
{¶ 11} Regarding the prior interaction and interrelationship of the child with Mother and
Grandfather, the court heard evidence that Mother has been the child's sole-caregiver her
entire life and that the child has a very close relationship with Mother. While Grandfather has
visited with the child on several occasions in the past, the visits were sporadic given that
Grandfather and the child have not lived in close proximity to one another.
{¶ 12} The court also considered the geographical location of the parties, and that at
the time of the hearing, Mother lived in North Carolina and Grandfather lived approximately
12 hours away in Florida. Despite the distance between North Carolina and Florida being
closer than Ohio and Florida, the parties still live a good distance away from each other,
making frequent visitation difficult.
{¶ 13} The court heard evidence that neither Mother nor Grandfather are employed or
have any particular work schedule. However, Mother testified that K.C., who was four years
old at the time of the hearing, was involved in various activities and would soon be enrolled in
preschool. Otherwise, the court heard little evidence regarding the child's adjustment to her
new home and community. The court did not interview the child.
{¶ 14} Regarding the health and safety of the child, the court heard evidence that
Mother has several concerns regarding unsupervised visitation. Mother relayed to the court
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her concern that Grandfather kissed K.C. on the lips, kept pornographic materials in his
home, currently displays nude artwork in his home, stares at K.C., has touched the child's
arm, and placed his finger in K.C.'s pocket. Mother also alluded to instances in Mother's own
2. Mother testified that she did not see the kiss, but that she saw the child after Grandfather kissed her and that
K.C. was visibly upset by the kiss and continues to talk to people about the kiss.
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childhood where Grandfather took a bath with Mother when she was six years old, and later
walked in on Mother when she was naked in her bedroom after showering. Mother also
expressed concerns that Grandfather, who has a heart condition and is hearing impaired,
kept his medication where K.C. could reach it and drinks non-alcoholic beer in front of the
child.
{¶ 15} Grandfather admitted that he kept pornographic materials in his private
bathroom in the past, that he keeps nude artwork on his walls at home, that he use to give
Mother baths, and that he accidentally walked in on Mother when she was a teenager after
she had showered. Grandfather, however, vehemently denied that he ever sexually abused
Mother, had any inappropriate sexual contact with her, or behaved in any sexualized manner
toward her or K.C. Grandfather also stated that when he kissed K.C., it was a "peck" on the
lips and that he and the child laughed about the kiss. Grandfather admitted to drinking non-
alcoholic beer in front of the child, but denied that he ever left his medication within K.C.'s
reach.
{¶ 16} Regarding the physical health of the parties, the court heard evidence that
Grandfather has a heart condition that requires him to take medication. Grandfather testified
that he gave up alcohol when he was diagnosed with his heart condition, and that he tries to
live a healthier lifestyle. Grandfather also has a hearing impairment and wears hearing aids.
K.C. is generally healthy, but has food allergies.
{¶ 17} The trial court considered that K.C. is an only child, and has no siblings. There
was no evidence submitted on either party's willingness to facilitate visitation rights, or
whether either party denied visitation rights as ordered by a court. Grandfather testified that
he has never been convicted of any crime involving abuse or neglect of a child, nor has he
acted in any manner resulting in a child being abused or neglected.
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{¶ 18} Mother and Father both stated their desire that Grandfather not have
unsupervised visitation with K.C. Mother testified that she would be willing for the entire
family to gather together to visit with K.C., and that she would not be opposed to Grandfather
visiting with K.C. so long as Mother could supervise the visits. Grandfather requested
unsupervised visitation, and testified that he would rather not have Mother present when he
visits K.C.
{¶ 19} After balancing all of the factors, the trial court declined to adopt the
magistrate's recommendation that Grandfather be denied visitation, and granted Grandfather
supervised visitation. We do not find that the trial court's order was an abuse of discretion.
Grandfather will be afforded the opportunity to visit with K.C. and cultivate his relationship
with her, and Mother will be afforded the opportunity to rest assured that nothing improper will
occur during the visits.
{¶ 20} Beyond the general balancing of the best interest factors, Grandfather raises
two specific arguments as to why the trial court abused its discretion in granting supervised
visitation. First, Grandfather devotes much of his brief to arguing that Mother unfairly
surprised and "ambushed" him at the hearing by having Father submit a letter to the court
regarding Father's opposition to Grandfather having unsupervised visitation with K.C.
However, Grandfather never expressed any such argument to the magistrate or trial court
other than arguing that Father's letter was hearsay.
{¶ 21} While it may be true that Grandfather was unaware that Father opposed
unsupervised visitation between Grandfather and K.C., that does not create a situation where
Grandfather was "ambushed" at the hearing. Grandfather's counsel specifically asked the
magistrate to consider the letter for the limited purpose to establish that Father
acknowledged service of Grandfather's complaint. Grandfather, other than arguing hearsay,
never argued that he was "ambushed" by Father's letter. Nor did Grandfather request a
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continuance or suggest that he was not prepared to proceed with the hearing once Father's
letter was discussed at the hearing.
{¶ 22} Grandfather did argue that the letter should not have been considered by the
magistrate because it was hearsay. In the letter, Father stated that he was unable to attend
the hearing because he lived and worked in Florida and could not appear in Ohio. Father
also stated his desire that Grandfather not have unsupervised visitation with K.C. Even if the
trial court should not have considered the letter as inadmissible hearsay, however, the record
does not indicate that Grandfather would have been granted unsupervised visitation with K.C.
absent Father's letter. The trial court based its decision on a comprehensive analysis of the
pertinent statutory factors, the vast majority of which involved Mother's concerns about
Grandfather's past actions toward her and several instances regarding Grandfather's actions
toward K.C. Father's opinion was pertinent to only one factor, and was cumulative to the
opinion expressed by Mother. See In re Lane, 4th Dist. No. 02CA61, 2003-Ohio-3755
(affirming order of supervised visitation despite hearsay being admitted into the record where
the hearsay was cumulative to other evidence already offered); and In re Spurlock Children,
12th Dist. Nos. CA90-01-013, CA90-01-014, 1992 WL 12778 (Jan. 27, 1992) (finding
admittance of hearsay harmless where reports containing hearsay were cumulative to other
evidence).
{¶ 23} Grandfather also argues that he received ineffective assistance of counsel
because his counsel did not emphasize to the trial court to a sufficient degree that
Grandfather had no criminal record and was never charged with any sexually-oriented
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crimes. Ineffective assistance of counsel claims do not apply in cases where a court is
3. Grandfather also raises an unsubstantiated and un-argued allegation in his brief regarding his counsel's
failure to argue that Mother was an unfit parent. This court will not discuss Grandfather's allegations. We are
mindful that Grandfather is proceeding pro se. However, this court will not entertain Grandfather's bald
assertions in his brief when those assertions were not raised below and are unsupported by the record.
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merely determining visitation rights, rather than possibly terminating a parent's parental
rights. In re Palmer Children, 5th Dist. No. CT2006-0009, 2006-Ohio-4747. Instead, parties
to a civil action voluntarily choose their own attorneys and "cannot avoid the consequences of
the acts or omissions of their selected representative." Luna-Corona v. Esquivel-Parrales,
12th Dist. No. CA2008-07-175, 2009-Ohio-2628, ¶ 42, citing GTE Automatic Elec., Inc. v.
ARC Industries, Inc., 47 Ohio St. 2d 146, 152 (1976). Therefore, there is no need to address
Grandfather's assertions as to his attorney's effectiveness.
{¶ 24} Having reviewed the record, the trial court did not abuse its discretion in
ordering supervised visitation. As such, we reject Grandfather's arguments and overrule his
assignment of error.
{¶ 25} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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