[Cite as In re B.J., 2012-Ohio-1913.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: B.J. 

 

 

JUDGES: 

: Hon. Patricia A. Delaney, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 2011-CA-00277 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of 

Common Pleas, Case No. 2010JCV0715 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: April 30, 2012 

APPEARANCES: 

For Father For SCJ&FS 

GREGORY A. PRICE LISA LOUY 

137 South Main Street, Ste. 300 Stark County Job & Family Services 

Akron, OH 44308 221 3rd Street 

 Canton, OH 44702 
[Cite as In re B.J., 2012-Ohio-1913.]

Gwin, J. 

{¶1} Appellant-father R.K.1

 appeals the September 11, 2011, judgment entry of 

the Stark County Court of Common Pleas, Family Court Division, which terminated his 

parental rights with respect to his minor child B.J. and granted permanent custody of the 

child to appellee, Stark County Job and Family Services (hereinafter “SCJFS”). 

I. PROCEDURAL HISTORY 

{¶2} On June 29, 2010, SCJFS filed a complaint seeking temporary custody of 

B.J., born May 22, 2009. The complaint alleged the child to be dependent and 

requested temporary custody. After a shelter care hearing the court ordered B.J. into 

the emergency temporary custody of the SCJFS. 

{¶3} On June 29, 2010, R.K.’s complaint was returned marked “Not Served.” 

On June 30, 2010 a complaint and praecipe was sent to R.K. by certified mail to an 

address in Sylvania, Ohio. On July 21, 2010, mother requested counsel and the case 

was set for evidence on September 2, 2010. 

{¶4} On July 22, 2010, counsel was appointed for mother. Mother waived her 

rights and stipulated to a finding of dependency. The magistrate found by Judgment 

Entry filed July 22, 2010 “no service on father.” 

{¶5} On August 2, 2010, service attempted upon R.K. at an address in 

Sylvania, Ohio was returned "unserved." On August 18, 2010, attempted service upon 

R.K at an address in Holland, Ohio was returned unserved, marked “Attempted Not 

Known.” 

 

1

 For purposes of anonymity, initials designate father’s name and the child’s name. See, e.g., In re C.C., 

Franklin App. No. 07-AP-993, 2008-Ohio-2803 at ¶ 1, n.1. Counsel should adhere to Sup.R.Rule 45(D) 

concerning disclosure of personal identifiers. 
Stark County, Case No. 2011-CA-00277 3 

{¶6} On September 2, 2010, B.J. was found dependent as to mother's interests 

and placed into the temporary custody of the SCJFS. 

{¶7} On September 15, 2010, service was completed upon R.K. R.K. failed to 

appear at the hearing scheduled for September 22, 2010. On September 22, 2010, the 

court took evidence with regard to R.K.’s interests. The magistrate found B.J. to be 

dependent as to R.K.’s interests and temporary custody was granted to the SCJFS. 

{¶8} On February 16, 2011, SCJFS filed a Motion for Permanent Custody. 

Service was perfected on all parties. Trial was scheduled for April 12, 2011. On April 8, 

2011, counsel was appointed for R.K. On April 12, 2011 R.K. appeared with counsel 

and requested a continuance. The trial court found R.K. had failed to appear for genetic 

testing at least three times; however, the court granted R.K.’s request for a continuance 

to allow genetic testing to be completed. 

{¶9} On May 16, 2011, R.K. filed a motion for visitation and custody. By 

Judgment Entry filed May 20, 2011 the trial court found that paternity had been 

established. The trial court scheduled the next dispositional review hearing for 

November 17, 2011 and ordered the “Status Quo.” 

{¶10} On June 3, 2011, R.K. filed a motion requesting a six-month extension. On 

June 23, 2011, R.K. filed a “Motion to Recuse Visiting Judge.” R.K. alleged that the 

visiting judge had denied his motion for a six-month extension and granted the SCJFS 

motion for permanent custody without a trial. The visiting judge reconsidered and 

rescheduled the matter. In the meantime, R.K. filed an affidavit of bias with the Ohio 

Supreme Court requesting that court disqualify the visiting judge. By Judgment Entry 

filed June 28, 2011 the administrative judge for the Stark County Court of Common 
Stark County, Case No. 2011-CA-00277 4 

Pleas, Family Court Division denied R.K.’s motion to recuse noting that only the Ohio 

Supreme Court can determine such a motion. On June 28, 2011, counsel for R.K. filed 

an affidavit of disqualification with the Ohio Supreme Court. 

{¶11} On August 29, 2011, R.K. filed a motion requesting a six-month extension. 

{¶12} On August 30, 2011, this case was transferred to a new judge. On August 

31, 2011, counsel appeared for the trial on the motion for permanent custody. Counsel 

for R.K. waived his affidavit of disqualification, which was still pending before the Ohio 

Supreme Court. Counsel stipulated that the appointment of a new judge obviated any 

concern he had about the previous judge hearing the permanent custody trial. (T. at 3-

5). 

A. Permanent Custody Trial. 

{¶13} R.K. testified to a rocky relationship with B.J.’s mother who would allow 

him to be a part of his son's life as long as she needed something from R.K. 

Nonetheless, R.K. was involved with the pregnancy and birth of his son. When mother 

allowed it, R.K.'s interaction with his son was very positive. R.K. brought his son to 

family events and R.K.’s family welcomed both warmly. 

{¶14} In the spring or summer of 2010, mother departed Wood County with the 

couple's son. R.K. testified that he did not know mother left Wood County for Stark 

County and had no way of contacting mother. R.K. testified that he did not know where 

his son was until he was contacted by SCJFS in August or September 2010. 

{¶15} R.K. testified that he was contacted by the Child Support Enforcement 

Agency (“CSEA”) regarding paternity testing in December 2010. He repeatedly told both 

SCJFS and CSEA that he had no means of getting to Stark County to be tested. R.K. 
Stark County, Case No. 2011-CA-00277 5 

claims that he requested that the paternity testing be moved to Wood County, but that 

request was refused. Instead, CSEA allegedly sent it to Toledo, which is forty minutes 

away with no public transportation connecting it to Bowling Green. R.K. testified that he 

contacted a cab company but could not afford the cost. R.K. testified that throughout 

this ordeal, he was requesting visits but he was led to believe that he had to establish 

paternity before he could get visits. R.K. admitted that no one from CSEA or SCJFS told 

him that he could not have visitation with his son. 

{¶16} After R.K. was appointed counsel, it took less than five weeks to have the 

request sent to Bowling Green, R.K. tested and the results prepared. By the time 

paternity was established in May 2011, SCJFS had not made any visits to R.K.'s home 

and had not scheduled any visitation. Although R.K.’s case plan was amended, the 

caseworker never discussed the new case plan with R.K., or requested R.K. to sign it. 

To date the case plan is blank were R.K. should have signed. 

{¶17} R.K. did not see his son until June 2011. By that time R.K. lived in 

Michigan with his fiancée and drove the three and a half-hour trip one way to see his 

son. R.K., at the time of the trial, was consistently visiting every two weeks. He and his 

fiancée drive the seven-hour trip in the middle of the week; SCJFS has not offered a 

weekend visit. The caseworker testified that R.C. is age-appropriate and gentle with B.J. 

{¶18} Elizabeth Nolff, R.K.’s fiancée testified that she has been in a relationship 

with R.K. since November 2010. When they met, R.C. was residing in Bowling Green, 

Ohio and then moved to Clinton, Michigan to be with her. Nolff further testified that she 

has an appropriate home for B.J. and would be willing to help care for him. Nolff was 
Stark County, Case No. 2011-CA-00277 6 

asked if she was able to provide transportation to R.K. during the period of June 2010 to 

June 2011. Nolff testified she would have been able to transport R.K. 

{¶19} On September 7, 2011 the Court issued its decision that R.K. had 

“abandoned [B.J.] by virtue of failure to maintain contact with the child for a period in 

excess of ninety days (90).” Further, the Court found that the best interest of the child 

would be served by the granting permanent custody of the children to the SCJFS. 

{¶20} Following the decision, the caseworker contacted R.K. to discuss a recent 

meeting the worker had with mother. Mother told the caseworker that R.K. was never 

violent with her and that she left without notice to R.K. as to how to contact her. She 

further told the worker that R.K. was in fact attempting to contact her but she had 

avoided him. The trial court overruled R.K.’s motion after hearing on November 21, 

2011 finding that the matter was not new information bearing on the facts; rather it was 

simply bearing upon the credibility of the witnesses. 

{¶21} It is from these entries that the R.K. has appealed. 

II. Assignments of Error 

{¶22} On appeal, R.K. asserts the following assignments of error: 

{¶23} “I. THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION 

FOR PERMANENT CUSTODY AND DENYING FATHER'S MOTION FOR A SIXMONTH EXTENSION AS THAT FINDING IS NOT SUPPORTED BY CLEAR AND 

CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

{¶24} “II. THE TRIAL COURT ERRED IN DENYING FATHER'S REQUEST FOR 

RE-HEARING OF THE STATE'S MOTION FOR PERMANENT CUSTODY.” 
Stark County, Case No. 2011-CA-00277 7 

A. Burden Of Proof 

{¶25} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re 

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405 

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody 

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S. 

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a 

parent's rights has been described as, “* * * the family law equivalent to the death 

penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(1991). 

Therefore, parents “must be afforded every procedural and substantive protection the 

law allows.” Id. 

{¶26} An award of permanent custody must be based upon clear and convincing 

evidence, R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and 

convincing evidence” as “[t]he measure or degree of proof that will produce in the mind 

of the trier of fact a firm belief or conviction as to the allegations sought to be 

established. It is intermediate, being more than a mere preponderance, but not to the 

extent of such certainty as required beyond a reasonable doubt as in criminal cases. It 

does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-

104, 495 N.E.2d 23(1986). 

B. Standard of Review 

{¶27} The Ohio Supreme Court has delineated our standard of review as 

follows, 

Where the degree of proof required to sustain an issue must be 

clear and convincing, a reviewing court will examine the record to 
Stark County, Case No. 2011-CA-00277 8 

determine whether the trier of facts had sufficient evidence before it to 

satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1, 

12 N.E. 526, Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v. 

Rimenik, 115 Ohio St. 11, 152 N.E. 14. 

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will 

affirm the trial court's findings “if the record contains competent, credible evidence by 

which the court could have formed a firm belief or conviction that the essential statutory 

elements for a termination of parental rights have been established.” In re Adkins, 5th 

Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶ 

17. 

{¶28} In Cross, the Supreme Court further cautioned, 

The mere number of witnesses, who may support a claim of one or 

the other of the parties to an action, is not to be taken as a basis for 

resolving disputed facts. The degree of proof required is determined by 

the impression which the testimony of the witnesses makes upon the trier 

of facts, and the character of the testimony itself. Credibility, intelligence, 

freedom from bias or prejudice, opportunity to be informed, the disposition 

to tell the truth or otherwise, and the probability or improbability of the 

statements made, are all tests of testimonial value. Where the evidence is 

in conflict, the trier of facts may determine what should be accepted as the 

truth and what should be rejected as false. See Rice v. City of Cleveland, 

114 Ohio St. 299, 58 N.E.2d 768. 

161 Ohio St. at 477-478. (Emphasis added). 
Stark County, Case No. 2011-CA-00277 9 

III. Requirements for Permanent Custody Awards 

{¶29} R.C. 2151.414 sets forth the guidelines a trial court must follow when 

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court 

schedule a hearing and provide notice upon filing of a motion for permanent custody of 

a child by a public children services agency or private child placing agency that has 

temporary custody of the child or has placed the child in long-term foster care. 

{¶30} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to 

grant permanent custody of the child to the public or private agency if the court 

determines, by clear and convincing evidence, it is in the best interest of the child to 

grant permanent custody to the agency, and that any of the following apply: 

(a) The child is not abandoned or orphaned, has not been in the 

temporary custody of one or more public children services agencies or 

private child placing agencies for twelve or more months of a consecutive 

twenty-two-month period, or has not been in the temporary custody of one 

or more public children services agencies or private child placing agencies 

for twelve or more months of a consecutive twenty-two-month period if, as 

described in division (D)(1) of section 2151.413 of the Revised Code, the 

child was previously in the temporary custody of an equivalent agency in 

another state, and the child cannot be placed with either of the child's 

parents within a reasonable time or should not be placed with the child's 

parents.; 

(b) the child is abandoned; 
Stark County, Case No. 2011-CA-00277 10 

(c) the child is orphaned and there are no relatives of the child who are 

able to take permanent custody; or 

(d) The child has been in the temporary custody of one or more public 

children services agencies or private child placing agencies for twelve or 

more months of a consecutive twenty-two-month period, or the child has 

been in the temporary custody of one or more public children services 

agencies or private child placing agencies for twelve or more months of a 

consecutive twenty-two-month period and, as described in division (D)(1) 

of section 2151.413 of the Revised Code, the child was previously in the 

temporary custody of an equivalent agency in another state. 

{¶31} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial 

court must apply when ruling on a motion for permanent custody. In practice, the trial 

court will usually determine whether one of the four circumstances delineated in R.C. 

2151.414(B)(1)(a) through (d) is present before proceeding to a determination 

regarding the best interest of the child. 

A. Parental Placement within a Reasonable Time- R.C. 2151.414(B) (1) (a). 

{¶32} The court must consider all relevant evidence before determining the child 

cannot be placed with either parent within a reasonable time or should not be placed 

with the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a 

finding under R.C. 2151.414(E) (1) – (15), the court shall determine the children cannot 

or should not be placed with the parent. A trial court may base its decision that a child 

cannot be placed with a parent within a reasonable time or should not be placed with a 

parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of 
Stark County, Case No. 2011-CA-00277 11 

one factor alone will support a finding that the child cannot be placed with the parent 

within a reasonable time. See In re: William S., 75 Ohio St.3d 95, 1996-Ohio-182, 661 

N.E.2d 738; In re: Hurlow, 4th Dist. No. 98 CA 6, 1998 WL 655414(Sept. 21, 1998); In 

re: Butcher, 4th Dist. No. 1470, 1991 WL 62145(Apr 10, 1991). 

{¶33} R.C. 2151.414(E) sets forth factors a trial court is to consider in 

determining whether a child cannot be placed with either parent within a reasonable 

period of time or should not be placed with the parents. Specifically, Section (E) 

provides, in pertinent part, as follows: 

(E) In determining at a hearing held pursuant to division (A) of this section 

or for the purposes of division (A)(4) of section 2151.353 of the Revised 

Code whether a child cannot be placed with either parent within a 

reasonable period of time or should not be placed with the parents, the 

court shall consider all relevant evidence. If the court determines, by clear 

and convincing evidence, at a hearing held pursuant to division (A) of this 

section or for the purposes of division (A)(4) of section 2151.353 of the 

Revised Code that one or more of the following exist as to each of the 

child's parents, the court shall enter a finding that the child cannot be 

placed with either parent within a reasonable time or should not be placed 

with either parent: 

(1) Following the placement of the child outside the child's home 

and notwithstanding reasonable case planning and diligent efforts by the 

agency to assist the parents to remedy the problems that initially caused 

the child to be placed outside the home, the parent has failed continuously 
Stark County, Case No. 2011-CA-00277 12 

and repeatedly to substantially remedy the conditions causing the child to 

be placed outside the child's home. In determining whether the parents 

have substantially remedied those conditions, the court shall consider 

parental utilization of medical, psychiatric, psychological, and other social 

and rehabilitative services and material resources that were made 

available to the parents for changing parental conduct to allow them to 

resume and maintain parental duties. 

(2) Chronic mental illness, chronic emotional illness, mental 

retardation, physical disability, or chemical dependency of the parent that 

is so severe that it makes the parent unable to provide an adequate 

permanent home for the child at the present time and, as anticipated, 

within one year after the court holds the hearing pursuant to division (A) of 

this section or for the purposes of division (A)(4) of section 2151.353 of 

the Revised Code; 

(3) The parent committed any abuse as described in section 

2151.031 of the Revised Code against the child, caused the child to suffer 

any neglect as described in section 2151.03 of the Revised Code, or 

allowed the child to suffer any neglect as described in section 2151.03 of 

the Revised Code between the date that the original complaint alleging 

abuse or neglect was filed and the date of the filing of the motion for 

permanent custody; 

(4) The parent has demonstrated a lack of commitment toward the 

child by failing to regularly support, visit, or communicate with the child 
Stark County, Case No. 2011-CA-00277 13 

when able to do so, or by other actions showing an unwillingness to 

provide an adequate permanent home for the child; 

(5) The parent is incarcerated for an offense committed against the 

child or a sibling of the child; 

(6) The parent has been convicted of or pleaded guilty to an 

offense under division (A) or (C) of section 2919.22 or under section 

2903.16, 2903.21, 2903.34, 2905.01, 2905.02, 2905.03, 2905.04, 2905.05

2907.07, 2907.08, 2907.09, 2907.12, 2907.21,2907.22, 2907.23, 2907.25

2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 291

1.11, 2911.12,2919.12, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2

925.02, or 3716.11 of the Revised Code and the child or a sibling of the 

child was a victim of the offense or the parent has been convicted of or 

pleaded guilty to an offense under section 2903.04 of the Revised Code, a 

sibling of the child was the victim of the offense, and the parent who 

committed the offense poses an ongoing danger to the child or a sibling of 

the child. 

(7) The parent has been convicted of or pleaded guilty to one of the 

following: 

* * * 

(8) The parent has repeatedly withheld medical treatment or food 

from the child when the parent has the means to provide the treatment or 

food, and, in the case of withheld medical treatment, the parent withheld it 

for a purpose other than to treat the physical or mental illness or defect of 
Stark County, Case No. 2011-CA-00277 14 

the child by spiritual means through prayer alone in accordance with the 

tenets of a recognized religious body. 

(9) The parent has placed the child at substantial risk of harm two 

or more times due to alcohol or drug abuse and has rejected treatment 

two or more times or refused to participate in further treatment two or 

more times after a case plan issued pursuant to section 2151.412 of the 

Revised Code requiring treatment of the parent was journalized as part of 

a dispositional order issued with respect to the child or an order was 

issued by any other court requiring treatment of the parent. 

(10) The parent has abandoned the child. 

(11) The parent has had parental rights involuntarily terminated with 

respect to a sibling of the child pursuant to this section or 

section or 2151.415 of the Revised Code, or under an existing or former 

law of this state, any other state, or the United States that is substantially 

equivalent to those sections, and the parent has failed to provide clear and 

convincing evidence to prove that, notwithstanding the prior termination, 

the parent can provide a legally secure permanent placement and 

adequate care for the health, welfare, and safety of the child. 

(12) The parent is incarcerated at the time of the filing of the motion 

for permanent custody or the dispositional hearing of the child and will not 

be available to care for the child for at least eighteen months after the 

filing of the motion for permanent custody or the dispositional hearing. 
Stark County, Case No. 2011-CA-00277 15 

(13) The parent is repeatedly incarcerated, and the repeated 

incarceration prevents the parent from providing care for the child. 

(14) The parent for any reason is unwilling to provide food, clothing, 

shelter, and other basic necessities for the child or to prevent the child 

from suffering physical, emotional, or sexual abuse or physical, emotional, 

or mental neglect. 

(15) The parent has committed abuse as described in section 

2151.031 of the Revised Code against the child or caused or allowed the 

child to suffer neglect as described in section 2151.03 of the Revised 

Code, and the court determines that the seriousness, nature, or likelihood 

of recurrence of the abuse or neglect makes the child's placement with the 

child's parent a threat to the child's safety. 

(16) Any other factor the court considers relevant. 

{¶34} R.C. 2151.414(D) requires the trial court to consider all relevant factors in 

determining whether the child's best interests would be served by granting the 

permanent custody motion. These factors include but are not limited to: (1) the 

interrelationship of the child with others; (2) the wishes of the child; (3) the custodial 

history of the child; (4) the child's need for a legally secure placement and whether such 

a placement can be achieved without permanent custody; and (5) whether any of the 

factors in divisions (E) (7) to (11) apply. 

{¶35} In this case, the trial court made its permanent custody findings pursuant 

to R.C. 2151.414(B)(1)(b). The trial court found that the evidence established that [R. 

K.] has abandoned [B.J.] by virtue of failure to maintain contact with the child for a 
Stark County, Case No. 2011-CA-00277 16 

period in excess of ninety days (90).” The record includes the recommendation of the 

guardian ad litem for the child, and the testimony of several witnesses, including R.K. 

{¶36} R.C. 2151.011(C) provides, 

For the purposes of this chapter, a child shall be presumed abandoned 

when the parents of the child have failed to visit or maintain contact with 

the child for more than ninety days, regardless of whether the parents 

resume contact with the child after that period of ninety days. 

{¶37} R.C. 2151.011(C) merely creates a presumption of abandonment, which a 

parent may rebut. See In re C.E., 2nd Dist. No. 2005-CA-11, 2005-Ohio-5913, ¶12; In re 

Cornell, 11th Dist. No.2003-P-0054, 2003-Ohio-5007, fn. 2; In re Phillips, 11th Dist. No 

2005-A-0020, 2005-Ohio-3774, ¶32. 

{¶38} A review of the record establishes that R.K. had a relationship with his son 

before the child’s mother moved to Stark County. In this respect, failure to establish 

paternity is not truly an excuse for failing to establish contact or visitation. Even 

assuming the child’s mother concealed her and B.J.’s whereabouts, R.K. was served 

with the complaint on September 15, 2010. At that point the mother no longer had 

control over visitation with R.K. R.K.’s fiancée testified that she could have transported 

R.K. to Stark County at any time between September, 2010 and June 2011. R.K. did not 

appear until April 13, 2011 at which time he requested another extension to establish 

paternity after failing to appear for the test on three prior occasions. He never supported 

his child and never visited his child or established any relationship with this child until 

after the entry establishing his paternity. 
Stark County, Case No. 2011-CA-00277 17 

{¶39} We recognize that if R.K. attempted to visit B.J., but was prevented from 

doing so by SCJFS, it would be difficult to conclude that his actions were the equivalent 

of abandonment. See In re Adoptions of Groh, 153 Ohio App.3d 414, 424, 794 N.E.2d 

695(2003). However, the trial court in the case sub judice, after hearing testimony, did 

not find that SCJFS interfered with R.K.s attempts at visitation. Because the trial judge 

is best able to view the witnesses and observe their demeanor, gestures and voice 

inflections, and use these observations in weighing the credibility of the proffered 

testimony, we must give deference to the trial court's findings of fact. Seasons Coal Co. 

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273(1984). 

{¶40} Based upon the foregoing, as well as the entire record in this case, we find 

that R.K. did not provide sufficient evidence to rebut the presumption of abandonment, 

as contained in R.C. 2151.011(C). In re Cornell at ¶20; In re Cravens, 3rd Dist. No. 4-

03-48, 2004-Ohio-2356, ¶23; In re Bailey Children, 5th Dist. No. 2004 CA 00386, 2005-

Ohio-2981, ¶ 32. 

B. The Best Interest of the Child.

{¶41} In determining the best interest of the child at a permanent custody 

hearing, R.C. 2151.414(D) mandates the trial court consider all relevant factors, 

including, but not limited to, the following: 

(1) the interaction and interrelationship of the child with the child's parents, 

siblings, relatives, foster parents and out-of-home providers, and any other 

person who may significantly affect the child; 

(2) the wishes of the child as expressed directly by the child or through the 

child's guardian ad litem, with due regard for the maturity of the child; 
Stark County, Case No. 2011-CA-00277 18 

(3) the custodial history of the child; and 

(4) the child's need for a legally secure permanent placement and whether 

that type of placement can be achieved without a grant of permanent 

custody. 

{¶42} The focus of the “best interest” determination is upon the child, not the 

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a 

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d 

309, 315, 642 N.E.2d 424(1994). A finding that it is in the best interest of a child to 

terminate the parental rights of one parent is not dependent upon the court making a 

similar finding with respect to the other parent. The trial court would necessarily make a 

separate determination concerning the best interest of the child with respect to the 

rights of the mother and the rights of the father. 

{¶43} The trial court made findings of fact regarding the child’s best interest. It is 

well-established that “[t]he discretion which the juvenile court enjoys in determining 

whether an order of permanent custody is in the best interest of a child should be 

accorded the utmost respect, given the nature of the proceeding and the impact the 

court's determination will have on the lives of the parties concerned.” In re: Mauzy 

Children, 5th Dist No. 2000CA00244, 2000 WL 1700073(Nov. 13, 2000). In re: Awkal, 

supra at 316. 

{¶44} In the case at bar, the trial court found that B.J. is currently placed in foster 

care and is well adjusted. He has been in the same foster home since his removal from 

mother. The foster family is committed to him and has expressed an interest in adopting 

him. B.J. is very comfortable in the home and is bonded to his foster parents and their 
Stark County, Case No. 2011-CA-00277 19 

children. R.K. has had minimal interaction with B.J. in June 2011. The guardian ad litem 

recommended permanent custody of B.J. to the SCDJS as being in his best interest. 

{¶45} Based on the evidence submitted at trial, the court properly determined 

the best interest of the child would be served by the grant of permanent custody to 

SCDJS. 

C. Post trial Motion 

{¶46} Civ.R. 59 governs motions for a new trial: 

(A) Grounds 

A new trial may be granted on motion of the defendant for any of the 

following causes affecting materially his substantial rights: 

 * * * 

(6) When new evidence material to the defense is discovered which the 

defendant could not with reasonable diligence have discovered and 

produced at the trial. When a motion for a new trial is made upon the 

ground of newly discovered evidence, the defendant must produce at the 

hearing on the motion, in support thereof, the affidavits of the witnesses by 

whom such evidence is expected to be given, and if time is required by the 

defendant to procure such affidavits, the court may postpone the hearing 

of the motion for such length of time as is reasonable under all the 

circumstances of the case. The prosecuting attorney may produce 

affidavits or other evidence to impeach the affidavits of such witnesses. 

{¶47} The Ohio Supreme Court has observed, 
Stark County, Case No. 2011-CA-00277 20 

“To warrant the granting of a motion for a new trial on the ground of 

newly discovered evidence, it must be shown that the new evidence (1) 

discloses a strong probability that it will change the result of a new trial if 

granted; (2) has been discovered since the trial; (3) is such as could not in 

the exercise of due diligence have been discovered before the trial; (4) is 

material to the issues; (5) is not merely cumulative to former evidence; 

and (6) does not merely impeach or contradict the former evidence.” 

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370(1947), syllabus. 

{¶48} “The granting of a motion for a new trial upon the ground named [newly 

discovered evidence] is necessarily committed to the wise discretion of the court, and a 

court of error cannot reverse unless there has been a gross abuse of that discretion. 

And whether that discretion has been abused must be disclosed from the entire record.” 

State v. Petro, supra, 148 Ohio St. at 507 and 508, 76 N.E.2d 370, quoting State v. 

Lopa, 96 Ohio St. 410, 411, 117 N.E. 319(1917). An abuse of discretion is more than an 

error of law or judgment and implies that the court's attitude is unreasonable, arbitrary or 

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 

1140(1983). When applying the abuse of discretion standard, an appellate court may 

not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 

Ohio St.3d 619, 621, 614 N.E.2d 748(1993). 

{¶49} In the case at bar, R.K. argues that mother admitted to the caseworker 

after trial that she intentionally mislead him into believing that R.K. had no contact with 

his son and that she ran from R.K. because he was violent. Mother further admitted 

that she fled with the child and never attempted to contact R.K. She made every effort 
Stark County, Case No. 2011-CA-00277 21 

to make sure that R.K. could not contact his son. Therefore, R.K.'s absence was not 

voluntary. 

{¶50} R.K. has the burden of establishing that the new evidence created a 

strong probability of a different result if a new trial was granted. State v. Luckett, 144 

Ohio App.3d 648, 661, 761 N.E.2d 105(2001). The evidence proffered by R.K. in 

support of his motion is not material to the issues, is merely cumulative to former 

evidence, and, at best, merely impeaches or contradicts the former evidence. State v. 

Petro, supra. 

{¶51} As previously noted, after R.K. was served in the case at bar, the actions 

of the mother cannot justify his delay in establishing paternity and his failure to visit or 

contact the child for the next eight months. Nothing in the proffered evidence 

established that R.K. was in any way prevented from contact with B.J. from September 

2009 to June 2010. Thus, the new evidence does not create a strong probability of a 

different result if a new trial was granted. 

{¶52} Accordingly, the trial court did not err in denying his motion for a new trial 

claiming newly discovered evidence or his motion for a new trial claiming misconduct of 

the mother and his request for a further hearing on the matter.

III. Conclusion 

{¶53} For these reasons, we find that the trial court had sufficient, credible 

evidence before it to find by clear and convincing evidence that R.K. had abandoned 

B.J. We further find that the trial court’s decision that permanent custody to SCJFS was 

in B.J.’s best interest was not against the manifest weight or sufficiency of the evidence. 
Stark County, Case No. 2011-CA-00277 22 

{¶54} We further find that the trial court did not err in denying his motion for a 

new trial claiming newly discovered evidence or misconduct of the mother and his 

request for a further hearing on the matter. 

{¶55} R.K.’s two assignments of error are overruled in their entirety, and the 

judgment of the Stark County Court of Common Pleas, Family Court Division is 

affirmed. 

By Gwin, J., 

Delaney, P.J., and 

Wise, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. JOHN W. WISE 

WSG:clw 0412 
[Cite as In re B.J., 2012-Ohio-1913.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: B.J. : 

 : 

 : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : CASE NO. 2011-CA-00277 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Stark County Court of Common Pleas, Family Court Division is affirmed. Costs to 

appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. JOHN W. WISE