[Cite as In re P. K., 2018-Ohio-400.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

 P.K. 

MINOR CHILD 

 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. John W. Wise, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 2017 CA 00196 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Juvenile Division, Case No. 2015 JCV 

00433A 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 31, 2018 

APPEARANCES: 

For Appellee For Appellant 

BRANDON J. WALTENBAUGH MARY G. WARLOP 

STARK COUNTY JFS 116 Cleveland Avenue NW 

402 2ND Street, SE Suite 500 

Canton, Ohio 44702 Canton, Ohio 44702 
Stark County, Case No. 2017 CA 00196 2

Wise, John, J. 

{¶1} Appellant Gaybriel F. appeals the decision of the Stark County Court of 

Common Pleas, Juvenile Division, which granted permanent custody of her daughter, 

P.K., to Appellee Stark County Job and Family Services. The relevant facts leading to 

this appeal are as follows. 

{¶2} On May 7, 2015, Appellee Stark County Job and Family Services (“SCJFS” 

or “agency”) filed a complaint alleging that P.K., born in 2009, was neglected and/or 

dependent. A companion case involving P.K.’s sister, born in 2008, was also initiated.1

Initial concerns included the mental health of appellant-mother, her substance abuse, 

and housing issues. 

{¶3} P.K. and her sister were initially placed under agency protective 

supervision. However, emergency shelter care was granted ex parte on June 5, 2015, 

one month after the complaint. 

{¶4} An adjudication hearing took place on July 10, 2015. Both parents stipulated 

to a dependency finding at that time. Temporary custody of P.K. and her sister with 

SCJFS was also maintained. 

{¶5} On October 16, 2015, the girls’ maternal great uncle filed a motion for 

change of legal custody. However, he subsequently withdrew his request to intervene in 

the case. 

{¶6} In the meantime, SCJFS filed a motion for permanent custody on October 

5, 2016. However, the trial court denied same via a judgment entry issued on December 

9, 2016. 

 

1 The case regarding the child’s sister has been appealed under a separate number. 
Stark County, Case No. 2017 CA 00196 3

{¶7} Throughout much of the case, P.K. and her sister were in placement with 

their paternal grandmother, even though she had not shown an interest in long-term 

custody. Tr. at 45. In April 2017, the agency attempted a third-party placement and 

correspondingly filed a motion for change of legal custody. However, said placement 

arrangement was not successful. Another foster placement was then arranged, which 

fared much better. 

{¶8} On June 26, 2017, SCJFS filed a second motion requesting permanent 

custody. 

{¶9} The matter proceeded to an evidentiary hearing held on September 11, 

2017. Appellant appeared with counsel. P.K.’s father also appeared with counsel; 

however, he was found inter alia to have abandoned the child. 

{¶10} Following these proceedings, via a judgment entry with findings of fact and 

conclusions of law issued September 13, 2017, the trial court granted permanent custody 

of P.K. to SCJFS. Permanent custody was also granted as to P.K.’s sister, under a 

separate case number. 

{¶11} On October 13, 2017, appellant filed a notice of appeal. She herein raises 

the following two Assignments of Error: 

{¶12} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY 

TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) 

AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT 

GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 
Stark County, Case No. 2017 CA 00196 4

{¶13} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY 

TO [THE] STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES 

(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE 

THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILDREN TO GRANT 

PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE.” 

I. 

{¶14} In her First Assignment of Error, appellant-mother contends the trial court 

erred in granting permanent custody of P.K. to the agency. We disagree. 

{¶15} R.C. 2151.414(B)(1) reads as follows: 

Except as provided in division (B)(2) of this section, the court may 

grant permanent custody of a child to a movant if the court determines at 

the hearing held pursuant to division (A) of this section, by clear and 

convincing evidence, that it is in the best interest of the child to grant 

permanent custody of the child to the agency that filed the motion for 

permanent custody 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 
Stark County, Case No. 2017 CA 00196 5

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. 

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

are able to take permanent custody. 

(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. 

(e) The child or another child in the custody of the parent or parents 

from whose custody the child has been removed has been adjudicated an 

abused, neglected, or dependent child on three separate occasions by any 

court in this state or another state. 

For the purposes of division (B)(1) of this section, a child shall be 

considered to have entered the temporary custody of an agency on the 

earlier of the date the child is adjudicated pursuant to section 2151.28 of the 
Stark County, Case No. 2017 CA 00196 6

Revised Code or the date that is sixty days after the removal of the child 

from home. 

{¶16} We initially note the trial court in the case sub judice relied on R.C. 

2151.414(B)(1)(a), supra, as well as R.C. 2151.414(B)(1)(b) and R.C. 2151.414(B)(1)(d). 

The latter provision is sometimes termed the “twelve of twenty-two” rule. See, e.g., In re 

J.I., 12th Dist. Preble No. CA2005-05-008, 2005-Ohio-4920, ¶ 8. It is well-established 

that (B)(1)(a) and (B)(1)(d) are independently sufficient to use as a basis to grant an 

agency's motion for permanent custody. See In re M.R., 3d Dist. Defiance No. 4–12–18, 

2013–Ohio–1302, ¶ 80. Similarly, (B)(1)(b) (abandonment) is independently sufficient to 

use as a basis to grant a motion for permanent custody. See In re N.W., 10th Dist. 

Franklin No. 07AP-590, 2008-Ohio-297, ¶ 10; In re Anthony/Bentley Children, 5th Dist. 

Stark No. 2001CA00185, 2001 WL 1769937. 

{¶17} In this instance, while appellant focuses on the application of (B)(1)(a) and 

(B)(1)(b) in her case, it appears undisputed that at the time of the filing of the permanent 

custody motion, P.K. had been in agency custody for more than twelve months within a 

twenty-two month period. Under these circumstances, we are compelled, based on R.C. 

2151.414(B)(1)(d), to directly proceed to an analysis of the best interest issue. See, e.g., 

In re Walton/Fortson Children, Stark App.No. 2007CA00200, 2007–Ohio–5819, ¶ 14. 

{¶18} Appellant's First Assignment of Error is therefore overruled. 

II. 

{¶19} In her Second Assignment of Error, appellant-mother contends the trial 

court erred in granting permanent custody of P.K. to the agency, specifically in regard to 

the factor of “best interests.” We disagree. 
Stark County, Case No. 2017 CA 00196 7

{¶20} R.C. 2151.414(D)(1) reads as follows: 

In determining the best interest of a child at a hearing held pursuant 

to division (A) of this section or for the purposes of division (A)(4) or (5) of 

section 2151.353 or division (C) of section 2151.415 of the Revised Code, 

the court shall consider all relevant factors, including, but not limited to, the 

following: 

(a) The interaction and interrelationship of the child with the child's 

parents, siblings, relatives, foster caregivers and out-of-home providers, 

and any other person who may significantly affect the child; 

(b) 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; 

(c) The custodial history of the child, including whether 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; 
Stark County, Case No. 2017 CA 00196 8

(d) 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 to the agency; 

(e) Whether any of the factors in divisions (E)(7) to (11) of this section 

apply in relation to the parents and child.2 

For the purposes of division (D)(1) of this section, a child shall be 

considered to have entered the temporary custody of an agency on the 

earlier of the date the child is adjudicated pursuant to section 2151.28 of the 

Revised Code or the date that is sixty days after the removal of the child 

from home.”3 

{¶21} It is well-established that the trial court is in the best position to determine 

the credibility of witnesses. See, e.g., In re Brown, 9th Dist. Summit No. 21004, 2002–

Ohio–3405, ¶ 9, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. 

Furthermore, “[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. Stark No. 2000CA00244, 2000 WL 1700073, citing In re Awkal, 85 Ohio App.3d 

309, 316, 642 N.E.2d 424 (8th Dist. 1994). 

 

2 The (E)(7) to (E)(11) factors involve certain criminal convictions, withholding of food or 

medical treatment, substantial risk of harm due to alcohol or drug abuse, abandonment 

of the child, and termination of parental rights in regard to siblings. 

3 The additional statutory “best interest” guidance found in R.C. 2151.414(D)(2) has not 

been argued in the present appeal. 
Stark County, Case No. 2017 CA 00196 9

{¶22} As the agency responds in its appellee’s brief herein, appellant chiefly 

focuses on her case plan compliance in her “best interest” argument, although she 

maintains P.K. continues to desire to have contact with her. Also, by the time of the 

permanent custody trial, appellant had commendably maintained a job in Massillon and 

had obtained better housing near Canton Monument Park, a car, and a driver’s license. 

However, under R.C. 2151.414(D)(1), the focus is upon the child's best interests, not 

upon a parent's compliance with the case plan. See In the Matter of M.H.-L.T., 4th Dist. 

Washington No. 17CA12, 2017-Ohio-7825, ¶ 61, citing In re K.J., 4th Dist. Athens No. 

08CA14, 2008–Ohio–5227, ¶24. In this instance, P.K. is medically and developmentally 

healthy, but she is dealing with generalized anxiety disorder and behavioral problems, 

and she needs a stable and consistent home environment, which appellant has been 

unable to provide or demonstrate. (See testimony of Caseworker Heather Grimes, Tr. at 

44, 50; testimony of Irene Quinlin, L.I.S.W., Tr. at 61-62). The agency has investigated 

several relative placements, but all have been unsuccessful. P.K. is bonded with her 

sister. They have been placed together, and the foster family has indicated a willingness 

to adopt both girls. Tr. at 46-47. The G.A.L. since May 2015, Attorney Christopher 

Coleridge, spoke favorably of the current foster placement, and reported that P.K wished 

to stay there. He further recommended a grant of permanent custody to the agency. Tr. 

at 68-71; Amended GAL Report at 2. 

{¶23} Accordingly, upon review of the record, the judgment entry, and the 

accompanying findings of fact and conclusions of law, we find no basis to overturn the 

decision of the trier of fact, and we conclude the grant of permanent custody of P.K. was 
Stark County, Case No. 2017 CA 00196 10

made in the consideration of the child's best interests and did not constitute an error or 

an abuse of discretion. 

{¶24} Appellant's Second Assignment of Error is therefore overruled. 

{¶25} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Juvenile Division, Stark County, Ohio, is hereby affirmed. 

By: Wise, John, J. 

Hoffman, P. J., and 

Wise, Earle, J., concur. 

 

JWW/d 0124