In re K.J.

2014 Ohio 3100

Opinion

[Cite as In re K.J., 2014-Ohio-3100.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: K.J. : Hon. W. Scott Gwin, P.J. DEPENDENT CHILD : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. : : : Case No. 14CA7 : : : OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Richland County Court of Common Pleas, Juvenile Division, Case No. 2010 DEP 00039

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 14, 2014

APPEARANCES:

For Appellant

DALE MUSILLI 105 Sturges Avenue Mansfield, OH 44903 [Cite as In re K.J., 2014-Ohio-3100.]

Gwin, P.J.

{¶1} Appellant appeals the December 30, 2013 judgment entry of the Richland

County Court of Common Pleas, Juvenile Division, overruling appellant’s objections to

the amended magistrate’s decision and adopting the amended magistrate’s decision

denying appellant’s motion for visitation and ordering that appellant have no personal

contact with K.J. except as specifically approved by K.J.’s mother.

Facts & Procedural History

{¶2} Appellant Wendell Lindsay is the biological father of K.J., born on June

24, 2008. Appellant has been incarcerated since October 27, 2010. The parties agree

that the following facts are not in dispute: on or about October 27, 2010, appellant was

convicted of rape against a minor half-sibling of K.J. and on October 28, 2010, appellant

was sentenced to a prison term of no less than ten years, and up to life imprisonment.

On October 11, 2012, appellant filed a motion for visitation with K.J. that was opposed

by K.J.’s mother, Richland County Children’s Services, and K.J.’s guardian ad litem.

The trial court initially indicated it would deny the motion for visitation after a February

2013 pre-trial, but subsequently scheduled the motion for trial.

{¶3} A trial was scheduled on appellant’s motion for May 24, 2013. Appellant

testified at the hearing that he is the biological father of K.J. and last saw her on March

17, 2010 when visitation was stopped due to his arrest. Appellant stated that, prior to

his incarceration, he bought K.J. clothes, milk, shoes, and would babysit or see her

approximately five (5) times per week. Appellant testified he has a very close bond with

K.J. and that there are no allegations he abused or neglected K.J. Appellant seeks

phone contact with K.J. and then visitation at the prison where he is incarcerated. Richland County, Case No. 14CA7 3

Appellant would follow any restrictions put on the visitation. Appellant described the

visitation section of the Mansfield Correctional Institution as a cafeteria-type setting with

officers and monitors there at all times. The small children have a small play area

where inmates are not allowed to go and appellant stated the children he has seen in

there do not seem fearful or afraid.

{¶4} Appellant confirmed he sent a letter to K.J.’s mother and to K.J.’s

caseworker and that the common theme of these letters was to proclaim his innocence.

Appellant accused K.J.’s mother of lying about an incident during her testimony in his

trial and also called the victim (K.J.’s half-sibling) a liar. Appellant testified he is

innocent of the crime he was convicted of. Appellant has four sons at Delaware Hayes

High School. They do not visit him at the prison, but they call him when they are at his

mother’s house and appellant does not force them to visit him. Appellant stated the last

time he talked with K.J. was once at Christmas when K.J. was at his mother’s home.

{¶5} Tonnisha Lindsay (“Tonnisha”), appellant’s daughter, testified she

occasionally visits him in prison and the children she has seen there are happy, fine,

and do not understand they are in a prison. She would be willing to transport K.J. to the

prison and supervise visitation. Tonnisha believes in appellant’s innocence and feels a

continued relationship with appellant would be in the best interest of K.J.

{¶6} Brandi Lindsay (“Brandi”), appellant’s niece, testified she visits appellant

twice per month and she takes her twenty (20) month old child and seven (7) month old

child to visit appellant. The children are not scared or nervous to be at a prison. Brandi

is willing to help with visitation and thinks K.J. would be willing to go with her for

visitation. Brandi stated she feels it is important K.J. knows appellant is innocent and Richland County, Case No. 14CA7 4

that K.J. is not old enough to understand she is in a prison for visitation. However,

Brandi acknowledged questions will start to arise because K.J. is a bright child.

{¶7} Hillary Rinehart (“Rinehart”) is the guardian ad litem for K.J. and was

appointed in April of 2010. She contacted the warden at Mansfield Correctional with

regards to appellant’s motion for visitation and received a letter back stating they would

deny visitation. Rinehart testified that, at this time, it is not in K.J.’s best interest to have

contact with appellant based upon the letter from the warden, the letters appellant wrote

to K.J.’s mother and the caseworker, and the complexity of the situation with the victim

since the victim is K.J.’s half-sibling. Rinehart testified that appellant’s continual

proclamation of innocence makes it possible a wedge would be driven between K.J. and

her half-sibling. While Rinehart never observed appellant with K.J., appellant’s state of

mind based upon the letters he wrote makes her question his ability to be a positive

influence on K.J. at this time. Rinehart stated K.J.’s mother does not want K.J. having

contact with appellant because of the threat to the bond between K.J. and the victim of

appellant’s crime, K.J.’s half-sibling. Rinehart testified appellant’s family can see K.J.

{¶8} Christine Johnson (“Johnson”) is the caseworker from Richland County

Children’s Services assigned to K.J. since 2010. Johnson testified it is not in the best

interest of K.J. to visit or have contact with appellant. Johnson’s opinion is based upon

her experience with the prison system, the fact that K.J. is the secondary victim of the

crime, and K.J.’s closeness with the victim of the crime. Johnson testified K.J. is a

secondary victim because she resided in the home with the other child while the crimes

were being committed. Johnson stated contact between appellant and K.J. would likely

cause a split in the family. Johnson was also concerned with appellant’s criminal Richland County, Case No. 14CA7 5

history. Johnson further testified that K.J. has no emotional investment in appellant and

K.J. has never mentioned her father to Johnson. Johnson testified that K.J.’s mother is

doing well in making decisions about K.J.’s best interest. K.J.’s mother does not believe

it is in the child’s best interest to have a relationship with appellant at this time.

{¶9} The parties stipulated to the admission into evidence of a December 17,

2012 letter from the Deputy Warden of Operations at Mansfield Correctional Institution

and that it correctly reflects the position of the institution that visitation between K.J. and

appellant should be denied.

{¶10} The magistrate found that K.J.’s well-being would not be significantly

enhanced by a relationship with appellant and there is a significant risk that her well-

being would be negatively affected by such a relationship while the facts relating to his

crimes and incarceration are the source of trauma to her mother and sister. The

magistrate further found that, based upon the evidence, including stipulations,

testimony, and exhibits, that it is not in the best interest of K.J. to have visitation or any

other contact with appellant, except as may be specifically and explicitly approved by

K.J.’s mother. The magistrate thus denied appellant’s motion for visitation.

{¶11} Appellant filed objections to the magistrate’s decision. The trial court

undertook an independent review and ascertained that the magistrate had properly

determined the factual issues and appropriately applied the law. The trial court

specifically noted the lack of significant contact and thus lack of bond between appellant

and K.J. and that, due to the length of his incarceration, it is unlikely appellant will be in

a position to develop a normal father-child relationship with K.J. within the reasonable

future. The trial court found it was not in the best interest of K.J. to have contact with Richland County, Case No. 14CA7 6

appellant and any arguable benefits to such contact is outweighed by the emotional

harm to the child. The trial court therefore denied appellant’s objections to the

magistrate’s decision and adopted and approved the amended magistrate’s decision

filed October 25, 2013 as the judgment and order of the court.

{¶12} Appellant appeals the December 30, 2013 judgment entry of the trial

court and assigns the following as error:

{¶13} “I. THE TRIAL COURT ERRED IN MAKING FINDINGS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶14} "II. THE TRIAL COURT ERRED IN MAKING FINDINGS UPON IN

SUFFICIENT EVIDENCE.

{¶15} "III. THE TRIAL COURT’S RULING AGAINST THE MOTION FOR

VISITATION WAS AN ABUSE OF DISCRETION.”

I., II., and III.

{¶16} A trial court’s decision concerning visitation will not be reversed on appeal

except upon a finding of abuse of discretion. Booth v. Booth, 44 Ohio St.3d 142, 541

N.E.2d 1028 (1989). An abuse of discretion implies an attitude that is unreasonable,

arbitrary, or unconscionable. Id. Further, “in modifying visitation rights, a court must

determine whether a change in the visitation order is in the child’s best interest, and it

must consider the factors set forth in R.C. 3109.051(D) in making this determination. In

re Ross, 154 Ohio App.3d 1, 2003-Ohio-4419, 796 N.E.2d 6 (1st Dist.). In order to

further the child’s best interest, the trial court has the discretion to limit or restrict

visitation rights. Jannetti v. Nichol, 7th Dist. Mahoning No. 97-CA-239, 2000 WL

652540 (May 12, 2000). “This includes the power to restrict the time and place of Richland County, Case No. 14CA7 7

visitation, to determine the conditions under which visitation will take place and to deny

visitation rights altogether if visitation would not be in the best interest of the child.” Id.

When a parent is imprisoned for a term of years, visitation necessarily must depend

upon the best interest of the child. Id.

{¶17} In addition, R.C. 3109.051(C) states, in part, that when determining

whether to grant parenting time to a parent pursuant to R.C. 3109.12, the court shall

consider the best interests factors of R.C. 3109.051(D). R.C. 3109.051(D) includes

such factors as the interaction of the child with the parents, siblings, and other persons;

the child’s adjustment to home, school, and community; the health and safety of the

child; the wishes of the child expressed herself or through her guardian ad litem; and

the mental and physical health of all parties.

{¶18} Further, as an appellate court, we neither weigh the evidence nor judge

the credibility of the witnesses, but instead determine whether there is relevant,

competent, and credible evidence upon which the finder of fact could base its judgment.

Cross Truck Equip. Co. Inc. v. The Joseph A. Jeffries Co., 5th Dist. Stark No. CA 5758,

1982 WL 2911 (Feb. 10, 1982). A judgment supported by some competent and credible

evidence going to all the essential elements of the case will not be reversed as being

against the manifest weight of the evidence. C.E. Morris Co. v Foley Constr., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978).

{¶19} Appellant argues the trial court’s decision was against the manifest weight

of the evidence, against the sufficiency of the evidence, and was an abuse of discretion.

Essentially, the question before us in all of appellant’s assignments of error is whether Richland County, Case No. 14CA7 8

the court abused its discretion in determining it was in K.J.’s best interest to deny

appellant visitation.

{¶20} We find there is competent and credible evidence to support the trial

court’s decision and that the trial court’s determination that contact with appellant is not

in K.J.’s best interest is not an abuse of discretion. Though appellant testified he has a

close bond with K.J., he has not seen her since March of 2010 and Johnson testified

K.J. never mentions appellant and has no emotional attachment to appellant. In

addition, the letter from the warden at Mansfield Correctional indicates his opinion is

that visitation should be denied.

{¶21} Further, both Rinehart and Johnson, who have been the guardian ad litem

and caseworker for K.J. since 2010, testified it is not the best interest of K.J. at this time

to have contact with appellant. Rinehart stated her opinion is based upon the letter from

the warden, the letters appellant wrote proclaiming his innocence, and the fact that

appellant’s proclamations of innocence might drive a wedge between K.J. and her half-

sibling, with whom she resides. Rinehart also questions appellant’s ability to be a

positive influence on K.J. Johnson based her opinion on her experience with the prison

system and the fact that K.J. is a secondary victim to appellant’s crime as she resided in

the home with the other child who was the victim of the crime when the crime was

committed. Johnson testified contact between K.J. and appellant would likely cause a

split in the family. This tension between appellant and K.J.’s half-sibling is demonstrated

by appellant’s confirmation he sent letters to K.J.’s mother to proclaim his innocence

and that the family members of appellant who testified at the hearing believe in his

innocence and feel it is important K.J. knows appellant is innocent. Richland County, Case No. 14CA7 9

{¶22} Based upon a review of the record, we find there is competent and

credible evidence to support the trial court’s determination. The trial court properly

examined the totality of the circumstances, including whether visitation might

detrimentally affect relationships with other members of K.J.’s family, and determined

that granting appellant’s motion for visitation was not in K.J.’s best interest. Moreover,

the guardian ad litem and caseworker were of the same opinion that visitation or contact

with appellant is not in K.J.’s best interest. Accordingly, the trial court did not abuse its

discretion in finding it was not in the best interest of K.J. to have visitation or contact

with appellant and in denying appellant’s motion for visitation. Appellant’s assignments

of errors are overruled. Richland County, Case No. 14CA7 10

{¶23} The December 30, 2013 judgment entry of the Richland County Court of

Common Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Baldwin, J., concur