[Cite as Dubec v. Pochiro, 2010-Ohio-1293.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

ANNETTE DUBEC n.k.a. VENUTO,                    )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )
VS.                                             )         CASE NO. 09-MA-6
                                                )
CHRISTOPHER POCHIRO,                            )              OPINION
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Civil Appeal from Court of Common
                                                Pleas, Juvenile Division, of Mahoning
                                                County, Ohio
                                                Case No. 98JI346

JUDGMENT:                                       Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                          Attorney Vincent J. Wloch
                                                1040 S. Commons Place #200
                                                Youngstown, Ohio 44514

For Defendant-Appellant                         Attorney Thomas E. Zena
                                                1032 Boardman-Canfield Road
                                                Youngstown, Ohio 44512




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                Dated: March 26, 2010
[Cite as Dubec v. Pochiro, 2010-Ohio-1293.]
DONOFRIO, J.

        {¶1}    Defendant-appellant           Christopher   Pochiro   appeals   a   decision
terminating physical visitation with his fourteen-year-old daughter and restricting
contact to weekly telephone calls.             He argues that the decision was against the
manifest weight of the evidence and an abuse of discretion, and that it violated his
due process rights.
        {¶2}    The Mahoning County Juvenile Court found Pochiro to be the father of
Lana Marie Pochiro and awarded him visitation with her. Lana’s mother, plaintiff-
appellee Annett Dubec n.k.a. Venuto is Lana’s residential parent and legal custodian.
In the late 1990’s, Venuto married and relocated, with court permission, to the
Massillon, Ohio area. Pochiro lives in Boardman, Ohio. Apparent acrimony between
Pochiro and Venuto led to numerous proceedings over the ensuing years regarding
Pochiro’s visitation with Lana.
        {¶3}    On September 15, 2008, the trial court awarded Pochiro visitation as
follows:
        {¶4}    “The Defendant, Christopher Pochiro is hereby granted the Standard
Order of Visitation commencing Friday, the 19th day of September, 2008 at 6:00 p.m.
Visitation is to take place at the paternal grandmother’s residence until further Court
order. There shall be no mid week visitation due to the distance between the parents
[sic] residences.       Parties are permitted to enjoy visitation outside the paternal
grandmother’s residence throughout the day. Parties are to sleep at the paternal
grandmother’s residence. The subject child is not permitted at the Defendant’s home
until further order of the Court.” (Docket 14.)
        {¶5}    The court modified the order the following week to allow visitation at
Pochiro’s residence provided he clean up clutter around the home.
        {¶6}    On October 8, 2008, Pochiro called Lana to tell her that his mother had
died that day in a car accident. The funeral arrangements had not been finalized, but
Pochiro told Lana that the calling hours would be that weekend. Pursuant to the
regularly scheduled visitation, Pochiro picked up Lana on Friday, October 10, 2008 at
6:00 p.m. Since Pochiro does not have a valid driver’s license, Pochiro’s friend
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provided the transportation from Massillon to Pochiro’s home in Boardman. The
evening was relatively uneventful with Pochiro and Lana carving pumpkins and
making pies.
      {¶7}     The next morning, Lana sent text messages to her cousin, Dillon.
According to Pochiro, Dillon and his mother (Venuto’s sister) drove by his residence
that morning and pulled into the driveway causing him to call Boardman Police
around 9:00 a.m.
      {¶8}     Later in the morning, an argument ensued between Pochiro and Lana
over the text messages and his being upset that she had not brought appropriate
clothing with her to wear for his mother’s funeral. At some point Lana retreated to her
bedroom and sat on the floor with her back to the door. Lana claimed that Pochiro
kicked in the door, repeatedly striking her back with the door as he kicked it. Pochiro
claimed that the door was partially open and that when he tried to push it open it
simultaneously hit Lana in her back and him in the head. Apparently, Lana had text
messaged Venuto about the altercation and Venuto in turn notified Boardman Police
who again went to Pochiro’s home.
      {¶9}     Boardman Police arrived at Pochiro’s home at 2:34 p.m. After Lana
expressed her concerns to them regarding her safety, the responding officer’s
supervisor made the decision to remove her from the home and placed her in the
custody of her maternal aunt.
      {¶10} As a result of these events, Venuto filed a motion to suspend visitation
on October 22, 2008. In response, Pochiro filed a motion and request for findings of
contempt and sanctions. The court held a hearing on November 15, 2008. The court
heard testimony from Pochiro, Venuto, Lana, the Boardman police officers, the
guardian ad litem, and Pochiro’s friend who had provided him the transportation to
get Lana for visitation.   Pochiro’s and Lana’s testimony regarding the events of
October 11, 2008 conflicted.     Lana testified that she never wanted to visit with
Pochiro again, citing concerns over his yelling and anger problems.
                                                                                 -3-


        {¶11} On November 25, 2008, the court issued its decision. After balancing
the rights of parents with the best interests of the child, the court terminated Pochiro’s
physical visitation with Lana, but did allow weekly telephone contact.         The court
denied Pochiro’s motion for contempt and sanctions.
        {¶12} The court based its decision on testimony gathered at the November
15, 2008 hearing as well as information it had received from previous hearings
concerning visitation, including a psychological evaluation of the parties and Lana, a
counseling report between Pochiro and Lana, and two prior in-camera interviews with
Lana.
        {¶13} The court noted that visitation was no longer feasible at Pochiro’s
residence due to clutter that had accumulated or at Pochiro’s mother’s residence
since she had just recently passed away. The court also noted that Pochiro was
unemployed and attempting to qualify for social security disability benefits. He does
not have a valid driver’s license, relying on friends for transportation, and, by his own
admission, leads a reclusive lifestyle with few friends or community ties.
        {¶14} In contrast, Lana lives in a middle class neighborhood in Massillon with
her mother, step-father, and half-sister. She excels academically and is active in
extracurricular activities and rides, cares for, and trains horses.
        {¶15} The court concluded that visitation was not in Lana’s best interests
based on the prior interrelationship with Pochiro; Lana’s wish to not have contact with
him; Lana’s age; her adjustment to home, school, and community; and her perceived
safety. This appeal followed.
        {¶16} Pochiro raises three assignments of error which can be addressed
together. They state, respectively:
        {¶17} “THE DECISION OF THE COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
        {¶18} “THE TERMINATION OF VISITATION BY THE COURT IS AN ABUSE
OF DISCRETION.”
                                                                                  -4-


       {¶19} “THE JUDGMENT OF THE TRIAL COURT IS A VIOLATION OF THE
APPELLANT’S RIGHT TO DUE PROCESS OF LAW.”
       {¶20} Pochiro argues that the trial court had no basis to terminate his
visitation rights and that it did so only out of frustration over the numerous
proceedings that had taken place over the years concerning visitation. He argues
that the court improperly gave weight to Lana’s preference for no visitation and that
her attitude was the result of parent alienation. He argues that there was not clear
and convincing evidence that extraordinary circumstances existed to terminate
visitation. Citing Johntonny v. Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200,
and Pettry v. Pettry (1984), 20 Ohio App.3d 350, 486 N.E.2d 213. He believes the
court went too far by terminating visitation rather than suspending it with the
opportunity to reinstate visitation at a later date.
       {¶21} Modification of visitation rights is left to the sound discretion of the trial
court. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. Abuse of
discretion connotes more than an error in judgment; it implies that the trial court’s
judgment is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140.
       {¶22} Pursuant to R.C. 3109.051(D), in determining parenting time matters
under R.C. 3109.051, the court shall consider all of the following factors: (1) the prior
interaction and interrelationships of the child with the child’s parents, siblings and
other persons related by consanguinity or affinity; (2) the geographical location of the
residence of each parent and the distance between those residences; (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) any wishes and concerns of the child 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
                                                                                  -5-


other parent's parenting time rights; (11) prior convictions for certain offenses or acts
resulting in abuse or neglect; (12) (applies only when person other than a parent
seeks visitation); (13) whether the residential parent has continuously and willfully
denied parenting time rights; (14) whether either parent has established a residence
or is planning to establish a residence outside this state; (15) (applies only where
person other than parent seeks visitation); (16) any other factor in the best interest of
the child. R.C. 3109.051(D).
       {¶23} Generally, the trial court looks only to the factors enumerated in R.C.
3109.051(D) and determines if modification of visitation is in the best interest of the
child. Braatz v. Braatz (1999), 85 Ohio St.3d 40, 45, 706 N.E.2d 1218. However, in
some cases, the foregoing statute does not stand in isolation. In re Kaiser, 7th Dist.
No. 04 CO 9, 2004-Ohio-7208, ¶10. It must be read and interpreted in conjunction
with other factors derived from caselaw to protect against infringement upon an
individual’s constitutional rights. Id.
       {¶24} This court has specifically held that “[t]he nonresidential parent has a
fundamental and natural right to visitation.” Anderson v. Anderson (2002), 147 Ohio
App.3d 513, 2002-Ohio-1156, 771 N.E.2d 303, ¶22 (7th Dist.), citing Johntonny v.
Malliski (1990), 67 Ohio App.3d 709, 588 N.E.2d 200, and Pettry v. Pettry (1984), 20
Ohio App.3d 350, 486 N.E.2d 213. “The child also has a fundamental right to
visitation with the nonresidential parent.” Id., citing Porter v. Porter (1971), 25 Ohio
St.2d 123, 54 O.O. 260, 267 N.E.2d 299, paragraph three of the syllabus.
       {¶25} Concerning this fundamental right of the nonresidential parent to
visitation with their child, this court has also noted that the right should be denied only
under extraordinary circumstances. Hoppel v. Hoppel, 7th Dist. No. 03 CO 56, 2004-
Ohio-1574, ¶44, citing Pettry, supra, paragraph one of the syllabus. The burden of
proof is on the one contesting visitation to demonstrate extraordinary circumstances
by clear and convincing evidence. Pettry, 20 Ohio App.3d at 352-353, 486 N.E.2d
213.
                                                                                   -6-


        {¶26} Pettry identified two extraordinary circumstances that would qualify: (1)
if the noncustodial parent was unfit; or (2) if visitation would cause harm to the child.
Another court has held that it would be an extraordinary circumstance if the
noncustodial parent were imprisoned for a term of years for a crime of violence. In re
Hall (1989), 65 Ohio App.3d 88, 90, 582 N.E.2d 1055. The examples listed in Pettry
and Hall are not meant to provide an exclusive list of possible extraordinary
circumstances. Hoppel, supra (involving nonresidential parent’s conviction for sexual
battery against subject child’s stepsister).     Once the custodial parent proves the
existence of an extraordinary circumstance, the burden shifts back to the
noncustodial parent to prove that any visitation would be in the best interests of the
child. Id.
        {¶27} In this case, Venuto contends that Pochiro’s visitation rights were not
terminated because the trial court issued a “continuing order” of telephone contact.
Despite Venuto’s argument to the contrary, the trial court did terminate Pochiro’s
visitation rights. In the second to last paragraph of the court’s judgment entry, the
court clearly states “it is the order of this Court that visitation between the child and
defendant is terminated * * *.”
        {¶28} The court did state that Pochiro “may have telephone contact with the
subject child every Wednesday at 7:00 p.m.” But that provision did not mean that
Pochiro’s    visitation    rights   had   not   been   terminated.   Given   the    court’s
acknowledgment of Lana’s statements that “she never wants to see him,” it was
obvious that meaningful telephone contact was unlikely to occur. Notably, the court
also terminated Pochiro’s monthly child support obligation.
        {¶29} The Ohio Supreme Court has observed that visitation means physical,
face-to-face visitation.     In Braatz, supra, the Court equated the nonresidential
parent’s right to visitation with temporary physical control. Braatz, 85 Ohio St.3d at
44, 45, 706 N.E.2d 1218. See, also, In re Gibson (1991), 61 Ohio St.3d 168, 171,
573 N.E.2d 1074. So, even disregarding the trial court’s specific order terminating
                                                                                   -7-


Pochiro’s visitation rights and focusing only on the court’s provision for telephone
contact, the order still effectively terminated Pochiro’s visitation rights with Lana.
          {¶30} Given that the trial court terminated Pochiro’s constitutionally protected
visitation rights, we must now review the court’s judgment based on the standard
elucidated above. The trial court did review Lana’s best interests under the factors
enumerated in R.C. 3109.051(D). The court gave particular attention to: Lana’s prior
interrelationship with Pochiro, R.C. 3109.051(D)(1); her age, R.C. 3109.051(D)(4);
her adjustment to home, school, and community; R.C. 3109.051(D)(5); her wish to
not spend time with Pochiro, R.C. 3109.051(D)(6); and the “perceived safety of the
child,” R.C. 3109.051(D)(7). However, a thorough review of the trial court’s judgment
entry reveals that it did not make the required initial finding that there was clear and
convincing evidence of extraordinary circumstances that would justify terminating
Pochiro’s visitation rights. The trial court skipped that step and instead limited its
review to R.C. 3109.051(D)’s best interests of the child factors.
          {¶31} We acknowledge Pochiro’s failure to provide a transcript of the
November 18, 2008 proceedings which led to the court’s decision.                  We also
acknowledge that Venuto only sought a suspension of visitation. But, the permanent
termination of parental rights has been described as “the family law equivalent to the
death penalty in a criminal case.” In re Hayes (1997), 79 Ohio St.3d 46, 48, 679
N.E.2d 680. Thus, a parent “must be afforded every procedural and substantive
protection that the law allows.” Id.       Parental rights receive even more stringent
protection under Ohio law than the Constitution requires. State ex rel. Asberry v.
Payne (1998), 82 Ohio St.3d 44, 46, 693 N.E.2d 794. Given the gravity of the court’s
order, we find that when a trial court terminates a nonresidential parent’s right of
visitation the court must make a finding in its judgment entry that there was clear and
convincing evidence of extraordinary circumstances justifying termination of those
rights.    Consideration should also be given to the appellee’s request to suspend
visitation.
                                                                                 -8-


         {¶32} Accordingly, Pochiro’s first, second, and third assignments of error have
merit.
         {¶33} The judgment of the trial court is hereby reversed and remanded for
further proceedings according to law and consistent with this court’s opinion.


Vukovich, P.J., concurs.

Waite, J., concurs in judgment only.
