Parker v. Ohio Dept Job & Family Serv.

2021 Ohio 611

• Court: Ohio Court of Appeals
• Decided: March 4, 2021
• Docket: 19CA000031
• Status: Published

Opinion

[Cite as Parker v. Ohio Dept Job & Family Serv., 2021-Ohio-611.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

TAMMY PARKER : JUDGES: : : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellant : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 19CA000031 : OHIO DEPT OF JOB AND FAMILY : SERVICES : : : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Case No. 19AP020051

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 4, 2021

APPEARANCES:

For Plaintiff-Appellant: For Defendant-Appellee:

JAMES P. CONNOR DAVID YOST 580 S. High St., Suite 150 OHIO ATTORNEY GENERAL Columbus, OH 43215 THERESA R. DIRISAMER 30 E. Broad St., 26th Floor Columbus, OH 43215-3400 Knox County, Case No. 19CA000031 2

Delaney, J.

{¶1} Plaintiff-Appellant Tammy Parker appeals the July 30, 2019 judgment entry

of the Knox County Court of Common Pleas.

FACTS AND PROCEDURAL HISTORY

2007 Revocation

{¶2} Since 1992, Plaintiff-Appellant Tammy Parker has been licensed as a Type

B Home Provider. A licensed Type B Home Provider is “the permanent residence of the

provider in which child care is provided for one to six children at one time and in which no

more than three children are under two years of age.” Ohio Admin. Code 5101:2-13-

01(GG).

{¶3} In 2007, Parker’s Type B Home Provider license was revoked by the Knox

County Department of Job and Family Services (“KCDJFS”) based on a substantiated

disposition of neglect. The neglect finding occurred after a six-month-old infant suffered

an injury to her face while under Parker’s care. Parker had placed the child in a walker,

other children in her care knocked over the walker, and the infant was injured. Parker did

not witness the accident. Linda Purdy, a social worker with the Family Support Unit of the

KCDJFS, was involved in the decision-making process to revoke Parker’s Type B license.

She was not involved in investigating the neglect determination.

{¶4} Parker challenged the 2007 revocation of her Type B Home Provider

license in the Knox County Court of Common Pleas. That proceeding was not included in

the record, but it appears Parker was unsuccessful.

{¶5} Parker was eligible to file an application for Type B Home Provider license

in five years. Knox County, Case No. 19CA000031 3

2013 Application

{¶6} On or about January 7, 2013, Parker filed an application with the KCDJFS

for certification as a Type B Day Care provider.1 In 2013, the application and licensure

process for a Type B Home Provider was regulated by former Ohio Admin. Code 5101:2-

14-02, eff. 11-15-2010. The regulation stated:

(A) Individuals interested in certification as a professional type B home

providers or in-home aides to provide publicly funded child care shall

contact the county department of job and family services (CDJFS) to

request an application.

***

(2) The CDJFS shall accept, and approve or deny all completed

applications for certification as a professional type B home provider or in-

home aide within one hundred twenty days from the date the CDJFS

receives the completed application.

Ohio Admin. Code 5101:2-14-02 (eff. 11-15-2010).

{¶7} Purdy, a social worker in the Family Unit of the KCDJFS, reviewed Parker’s

application for certification to be a Type B provider. As part of the application process,

Purdy submitted a requested to the Public Children’s Services Agency (“PCSA”) to

determine if anyone in the applicant’s home had a record with the PCSA. The PCSA

reported a 2007 disposition of substantiated neglect against Parker. On January 16, 2013,

1 There is confusion in the record as to whether Parker filed her application for a Type B Home Provider license in 2012 or 2013. Some of the underlying judgment entries refer to the 2012 application. According to this Court’s review of the record, it appears Parker filed her application in 2013. Knox County, Case No. 19CA000031 4

the KCDJFS denied Parker’s application for Type B certification based on the Child Abuse

and Neglect Report Information.

{¶8} Parker appealed the denial of her Type B provider application to the Knox

County Court of Common Pleas in Case No. 13AP03-0136. The trial court held a hearing

on February 27, 2014. At the hearing, Parker challenged the basis for the 2007 finding of

neglect. She also argued that the KCDJFS had an impermissible blanket policy of denying

a Type B license application if there was a substantiated neglect disposition. She stated

the KCDJFS should have considered the facts of the underlying incident, rather than just

the substantiated neglect finding. Parker contended that Purdy was biased against Parker

and because of Purdy’s bias and role in the application process, the KCDJFS abused its

discretion when it denied Parker’s application for certification. At the conclusion of the

hearing, the trial court stated, “I can’t find a reason why these people should not have

been granted a license on their application. * * * I think that they are entitled to a class

Type-B license in this instance.” (R. 695, Feb. 27, 2014 Hearing). The trial court ordered

counsel for the Parkers to file a proposed judgment entry reflecting the trial court’s ruling.

(R. 695, Feb. 27, 2014 Hearing).

{¶9} Counsel did not file a proposed judgment entry in 2014. It was not until

January 2, 2018 that the trial court journalized the February 27, 2014 ruling by the trial

court granting judgment in favor of Parker. In the judgment entry, the trial court stated the

KCDJFS decision denying Parker’s application was erroneous because there was no

substantiated record or evidence that would otherwise preclude the application or prevent

Parker from meeting the requirements necessary for licensure. (R. 699, Jan. 2, 2018

Judgment Entry). Knox County, Case No. 19CA000031 5

2015 Application

KCDJFS Review

{¶10} On September 21, 2015, Parker filed an application for a Type B Home

Provider license with the KCDJFS. At the time of Parker’s 2015 application, the Ohio

Administrative Code regulating the licensure of a Type B Home Provider had been

amended, effective January 1, 2014. Pursuant to Ohio Admin. Code 5101:2-14-02(A), eff.

1-14-2014, “A resident of Ohio who wishes to become a licensed type B home provider

shall contact the county department of job and family services (CDJFS) in the county in

which he or she resides to request a JFS 01643 ‘Application for Licensed Type B Home’

(rev. 1/2014).” It was the duty of the county department of job and family services to

“recommend applications for approval or denial, to the Ohio department of job and family

services (ODJFS) within one hundred days of receiving a completed application.” Ohio

Admin. Code 5101:2-14-02(K)(1) (eff. 1-1-2014). The Ohio Department of Job and Family

Services (“ODJFS”) made the determination whether to approve or deny the application

based on the recommendation of the county department of job and family services.

{¶11} Aimee Frye, the KCDJFS Family Unit Support Supervisor, submitted a letter

to the ODJFS on March 21, 2016 discussing Parker’s September 21, 2015 application for

a Type B Home Provider License. The letter states that after it received the application

and required documentation for the application, the KCDJFS conducted an “internal

staffing” to review the application and determine its recommendation. Present at the

internal review was the Agency Director, Social Services Administrator, Children Services

Attorney, Children Services Worker, and Child Care Supervisor. (R. 449). Knox County, Case No. 19CA000031 6

{¶12} As part of the review, the letter stated that the KCDJFS considered the

information received from the PCSA. It showed that Rick Parker (Tammy Parker’s

husband) and Tammy Parker were named as alleged perpetrators of substantiated

neglect by the Morrow County Children Services on September 8, 1993. The

substantiated neglect disposition was based on a burn suffered by a nine-month-old child

on its right shoulder while under their care. Information from the Statewide Automated

Child Welfare Information System showed in January 2000, there was an investigation

into Tammy and Rick Parker because a child received an injury while under their care.

On June 20, 2007, there was a substantiated disposition of neglect against Tammy Parker

based on the injury to an infant’s face while under her care. Based on the 2007 disposition

of neglect, the KCDJFS revoked her Type B license on June 22, 2007. (R. 449-450). After

the June 20, 2007 disposition of neglect and the June 22, 2007 revocation of her license,

Tammy and Rick Parker filed grievances in the PCSA case and the Child Care case. The

grievances were reviewed and denied. (R. 450).

{¶13} Frye stated in the letter that, “[a]fter reviewing the above items and after

much discussion it is the position of Knox County DJFS to not recommend Tammy Parker

for Type B licensure.” (R. 447). The KCDJFS stated its recommendation to deny the Type

B license was based on Ohio Admin. Code 5101:2-14-04(A)(7) (eff. 1-1-2014). That

regulation states:

(A) If a licensed type B home provider or applicant does any of the following,

the county department of job and family services (CDJFS) may recommend

to the Ohio department of job and family services (ODJFS) the denial of an

application or revocation of a provisional or continuous license: Knox County, Case No. 19CA000031 7

(7) The CDJFS has determined through the results of the child abuse and

neglect report or any other means pursuant to rule 5101:2-14-07 of the

Administrative Code, that there is an individual, of any age, who resides in

the home and whose behavior or health may endanger the health, safety or

well-being of children in care at the home.

Ohio Admin. Code 5101:2-14-04(A)(7) (eff. 1-1-2014).

{¶14} In support of its decision to not recommend licensure for Parker, the

KCDJFS referred to the two incidents of injuries to two infants while under Parker’s care

and the substantiated dispositions of neglect against Tammy and Rick Parker. The letter

also stated that the Parkers made accusations against Purdy during the 2007

proceedings. (R. 450-451).

ODJFS Review

{¶15} On March 31, 2016, the ODJFS notified the KCDJFS that it accepted the

KCDJFS recommendation for the denial of Parker’s Type B license. (R. 459).

{¶16} On June 2, 2016, the ODJFS sent Parker a “Notice of Opportunity for a

Hearing Regarding the Proposed Denial of the Type B Home Provider License

Application.” The letter notified Parker that the ODJFS proposed to enter an adjudication

order to deny the Type B license. Based on the information obtained by the ODJFS, it

found Parker had not been compliant with Ohio Admin. Code 5101:2-14-04(A)(7) (eff. 1-

1-2014). The letter notified Parker that she was entitled to a hearing pursuant to Ohio

Revised Code Chapter 119. Knox County, Case No. 19CA000031 8

ODJFS Hearing

{¶17} Parker requested a hearing. The matter was set for a hearing on September

20, 2018.

{¶18} On August 28, 2018, Parker filed a motion to dismiss the appeal, or in the

alternative, for a continuance of the hearing. In her motion, Parker contended the January

2, 2018 judgment entry by the Knox County Court of Common Pleas in Case No. 13AP03-

0136 was binding upon the ODJFS pursuant to the doctrine of res judicata. Parker argued

the denial of the 2015 Type B license application raised the same issues as the

proceedings in the 2013 application; therefore, the ODJFS was barred from denying the

2015 application for the Type B license.

{¶19} The matter came on for hearing before the Hearing Examiner on September

20, 2018. The Hearing Examiner first noted that he was without authority to rule on the

merits of the pending motion to dismiss and he denied the motion to continue the hearing.

(R. 75).

{¶20} Purdy testified at the hearing. She stated that in 2007, she received a

complaint from a parent that a child was hurt while in Parker’s care. (R. 120). Purdy gave

the complaint to Children’s Services because a child had been hurt. Purdy and Children’s

Services went to Parker’s home together to investigate the incident, but Purdy’s

investigation was only to determine if any childcare regulations had been violated. (R.

121). Purdy was not involved in determining whether neglect or abuse had occurred. (R.

122). Children’s Services substantiated neglect in the 2007 incident. Purdy did not

independently verify the substantiated finding. (R. 122). Knox County, Case No. 19CA000031 9

{¶21} Parker testified that when she applied for the Type B license in 2015, she

complied with the requirements of the application procedures. She assumed she would

be licensed as a Type B provider and was shocked when Purdy told her that she would

never be a day care provider. (R. 273). She denied any knowledge of the September 8,

1993 substantiated neglect disposition and she believed the information was fabricated

by the KCDJFS. (R. 285). The 1993 finding was not raised in her 2013 application for a

Type B license. (R. 283). Rick Parker also testified. Parker submitted the transcript of the

February 27, 2014 hearing before the Knox County Court of Common Pleas as evidence.

(Parker Exhibit C).

Hearing Examiner Report and Recommendation

{¶22} The Hearing Examiner issued his Report and Recommendation on

December 17, 2018. The Hearing Examiner first addressed whether res judicata barred

the ODJFS from denying Parker’s 2015 application for a Type B license. The Hearing

Examiner stated in his Findings of Fact that the January 2, 2018 judgment entry in Case

No. 13AP03-0136 was the appeal of a previous and separate application that was not the

subject of the case sub judice. (R. 726). The basis of the trial court’s judgment in favor of

Parker in Case No. 13AP03-0136 was based on the trial court’s “criticism and rejection

of the County Agency’s noted strict policy of denying an application based on the mere

existence of substantiated neglect findings.” (R. 727). The Hearing Examiner noted that

after Parker’s 2013 application, the law changed “to shift authority to approve or deny

applications away from the County Agencies and to the State, and consequently, the

County Agencies no longer had the authority to approve or deny applications for

licensure.” (R. 727). Knox County, Case No. 19CA000031 10

{¶23} The Hearing Examiner concluded that res judicata did not apply to bar a

denial of the 2015 application. (R. 728). First, the 2015 application was separate from the

2013 application, which was the subject of Case No. 13AP03-0136, and therefore did not

involve the same claim or action. (R. 728). Second, the record in the case did not

demonstrate any strict policy by the ODJFS to deny a Type B application based on the

mere existence of substantiated neglect findings. (R. 728-729). Third, the law shifted the

authority from the KCDJFS to the ODJFS to approve or deny an application. (R. 729).

{¶24} The Hearing Examiner also addressed the issue of whether there was

sufficient evidence to deny the application or revoke a license of a Type B Home Provider

pursuant to R.C. 5104.04(C). He found there were two substantiated neglect findings

against Tammy Parker and one substantiated neglect finding against Rick Parker. (R.

727). There was sufficient evidence in the record to demonstrate there was someone

residing in Parker’s home whose behavior may endanger the health, safety, and well-

being of children in care at the home. See Ohio Admin. Code 5101:2-14-04(A)(7). (R.

729).

{¶25} Parker filed two objections to the Report and Recommendation. (R. 731).

She argued the action was barred by the doctrine of res judicata and there was no

evidence to support the denial of the 2015 application pursuant to Ohio Admin. Code

5101:2-14-04(A)(7).

Adjudication Order

{¶26} On February 14, 2019, the Defendant-Appellee Director of the ODJFS

issued its Adjudication Order. The Director overruled both of Parker’s objections and

denied Parker’s September 21, 2015 Type B license application. It first found the county Knox County, Case No. 19CA000031 11

application and the state application were distinct and different, being authorized by the

different sections of the Ohio Revised Code and evaluated by different criteria in the Ohio

Revised Code. (R. 745). The 2015 application was an application of first impression

before the ODJFS.

{¶27} The Director next considered Parker’s argument that there was no evidence

in the record to support the conclusion that there was someone in the home whose

conduct could endanger children. Parker contended in her objections that the KCDJFS

nor the ODJFS conducted separate investigations to determine the validity of the

SACWIS reports of substantiated neglect. (R. 745). The Director stated, “The ODJFS is

not required to re-examine the facts and re-determine the outcomes of the situations that

gave rise to the substantiation of neglect findings issued by the PCSA and reported in

SACWIS. ODJFS is required to search the system to discover if any substantiated

findings have been issued.” (R. 745). The Adjudication Order stated Parker could re-apply

for a Type B Home Provider license.

Ohio Revised Code 119.12 Appeal to the Trial Court

{¶28} Parker appealed the February 14, 2019 Adjudication Order to the Knox

County Court of Common Pleas.

{¶29} After the ODJFS hearing records were transferred to the trial court and the

parties filed briefs, the trial court issued its judgment on July 30, 2019. It first found that

because Parker chose to file a new application in 2015 rather than pursuing the remedy

issued in the January 2, 2018 judgment entry, Parker waived her right to pursue any

remedy with respect to the first appeal. Because the 2015 application was governed by

amended Administrative Code regulations not applicable to the 2013 application, res Knox County, Case No. 19CA000031 12

judicata did not apply. The trial court next found that pursuant to the standard of review

found in R.C. 119.12, there was reliable, probative, and substantial evidence to support

the ODJFS to deny Parker’s 2015 application for a Type B Home Provider license.

Appeal of the Trial Court Judgment

{¶30} Parker filed her notice of appeal of the trial court’s judgment on August 28,

2019.

{¶31} On October 30, 2019, while the appeal was pending, Parker filed a motion

for relief from judgment with the trial court. She simultaneously filed a motion to stay the

appeal and for limited remand to the trial court to rule on the Civ.R. 60(B) motion. We

granted the motion for limited remand to the trial court. On January 3, 2020, the trial court

denied the motion for relief from judgment without a hearing. Parker filed a motion with

this Court to supplement the record with the trial court’s January 3, 2020 judgment entry,

but we denied the motion. We found the January 3, 2020 judgment entry was a final,

appealable order for which Parker could separately appeal.

{¶32} Accordingly, the only matter for our review in this appeal is the trial court’s

July 30, 2019 judgment entry affirming the Adjudication Order.

ASSIGNMENTS OF ERROR

{¶33} Parker states in her appellate brief that she assigns the following as errors:

{¶34} “I. THE TRIAL COURT ERRED BY AFFIRMING THE OHIO DEPARTMENT

OF JOB AND FAMILY SERVICES’ (‘ODJFS’) DENIAL OF TAMMY PARKER’S

APPLICATION FOR A PROFESSIONAL TYPE B DAY CARE PROVIDER

CERTIFICATION ON JUNE 2, 2016. Knox County, Case No. 19CA000031 13

{¶35} “II. THE TRIAL COURT ERRED BY DENYING TAMMY PARKER’S

APPEAL OF THE DENIAL OF HER APPLICATION FOR A PROFESSIONAL TYPE B

DAY CARE PROVIDER CERTIFICATION BASED ON ITS FINDING THAT SHE

‘WAIVED’ HER RIGHTS.

{¶36} “III. THE TRIAL COURT ERRED BY DENYING TAMMY PARKER’S

APPEAL OF THE DENIAL OF HER APPLICATION FOR A PROFESSIONAL TYPE B

DAY CARE PROVIDER CERTIFICATION BASED ON ITS FINDING THAT

APPELLANTS DID NOT REFUTE THE EVIDENCE PRESENTED AT THE HEARING

AND THAT APPELLANTS ‘DID NOT PRESENT ANY CONTRADICTING EVIDENCE OR

ARGUMENT SHOWING THAT THE EVIDENCE RELIEF UPON BY THE HEARING

EXAMINER IN THIS CASE WAS UNRELIABLE, NOT PROBATIVE, NOT

SUBSTANTIAL, AND NOT IN ACCORDANCE WITH LAW, OR OTHERWISE

UNREASONABLE OR IMPERMISSIBLE.’

{¶37} “IV. THE TRIAL COURT AND ODJFS ERRED BY FAILING TO ISSUE A

PROFESSIONAL TYPE B DAY CARE PROVIDER CERTIFICATION LICENSE TO

TAMMY PARKER AND DISMISSING THE APPEAL BASED ON RES JUDICATA AND

LAW OF THE CASE IN THE FORM OF THE TRIAL COURT’S PREVIOUS RULINGS

(KNOX CO. COMMON PLEAS CASE NO. 13AP03-0136) FROM THE BENCH ON

FEBRUARY 17, 2014 AND SUBSEQUENT JUDGMENT ENTRY FILED JANUARY 2,

2018.

{¶38} “V. THE TRIAL COURT ERRED BY AFFIRMING THE OHIO

DEPARTMENT OF JOB AND FAMILY SERVICES’ (‘ODJFS’) DENIAL OF TAMMY Knox County, Case No. 19CA000031 14

PARKER’S APPLICATION FOR A PROFESSIONAL TYPE B DAY CARE PROVIDER

CERTIFICATION BY DECISION ON DECEMBER 17, 2018.

{¶39} “VI. THE TRIAL COURT AND ODJFS ERRED BY DENYING TAMMY

PARKER’S APPLICATION FOR A PROFESSIONAL TYPE B DAY CARE PROVIDER

CERTIFICATION APPLICATION AND APPEAL BECAUSE NEITHER THE ORIGINAL

NOR APPEAL DECISIONS COMPLIED WITH OHIO ADM. CODE SECTION 5101:2-14-

40(N).”

ANALYSIS

{¶40} While Parker raises six Assignments of Error as to the trial court’s July 30,

2019 judgment entry, she outlines her argument in her appellate brief utilizing two

statements stating that the trial court erred:

I. THE TRIAL COURT ERRED BY FINDING THAT APPELLANTS

‘WAIVED’ THEIR RIGHTS OR REMEDY BY FILING A SECOND

DAYCARE LICENSE APPLICATION IN 2015.

II. THE TRIAL COURT FURTHER ERRED BY FINDING THAT

APPELLANTS DID NOT REFUTE ANY EVIDENCE AT THE HEARING

AND DID NOT PRESENT ANY CONTRADICTING EVIDENCE OR

ARGUMENT SHOWING THAT THE EVIDENCE RELIEF UPON BY THE

HEARING EXAMINER WAS UNRELIABLE, NOT PROBATIVE, NOT

SUBSTANTIAL, OR NOT IN ACCORDANCE WITH LAW.

(Appellant’s Brief, pp. i, 19, and 23). We organize our analysis of the trial court’s July 30,

2019 judgment to reflect Parker’s arguments. Knox County, Case No. 19CA000031 15

Standard of Review

{¶41} An appeal of an Adjudication Order issued by the Director of the ODJFS is

reviewed pursuant to R.C. 119.12.

Review at the Trial Court

{¶42} The trial court reviews an administrative appeal pursuant to R.C. 119.12 to

determine whether the administrative order is supported by reliable, probative, and

substantial evidence and is in accordance with law. 1st Class Driving Academy v. State,

5th Dist. Knox No. 09CA000006, 2009-Ohio-5174, ¶ 22. Such evidence has been defined

as follows: (1) “Reliable” evidence is dependable; that is, it can be confidently trusted. In

order to be reliable, there must be a reasonable probability that the evidence is true. (2)

“Probative” evidence is evidence that tends to prove the issue in question; it must be

relevant in determining the issue. (3) “Substantial” evidence is evidence with some

weight; it must have importance and value.” Id., citing Our Place, Inc. v. Ohio Liquor

Control Comm., 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992).

{¶43} In determining evidentiary conflicts, the Ohio Supreme Court in University

of Cincinnati v. Conrad, 63 Ohio St.2d 108, 407 N.E.2d 1265 (1980), directed courts of

common pleas to give deference to the administrative resolution of such conflicts. The

Supreme Court noted when the evidence before the court consists of conflicting testimony

of approximately equal weight, the common pleas court should defer to the determination

of the administrative body, which, acting as the finder of fact, had the opportunity to

determine the credibility and weight of the evidence. Conrad at 111.

{¶44} “Under R.C. 119.12, a reviewing court is obligated to determine whether the

agency's decision is ‘in accordance with law.’ An agency adjudication is like a trial, and Knox County, Case No. 19CA000031 16

while the reviewing court must defer to the lower tribunal's findings of fact, it must construe

the law on its own.” Garber v. State Med. Bd. of Ohio, 10th Dist. Franklin No. 19AP-620,

2020-Ohio-2909, ¶ 26 quoting Ohio Hist. Soc. v. State Emp. Relations Bd., 66 Ohio St.3d

466, 471, 613 N.E.2d 591 (1993).

Review at the Appellate Level

{¶45} On appeal to this Court, the standard of review is more limited. Unlike the

court of common pleas, a court of appeals does not determine the weight of the evidence.

Rossford Exempted Village School Dist. Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d

705, 707, 590 N.E.2d 1240 (1992). In reviewing the trial court's determination, the

Adjudication Order was supported by the reliable, probative, and substantial evidence,

this Court's role is limited to determining whether the trial court abused its discretion. Roy

v. Ohio State Med. Bd., 80 Ohio App.3d 675, 680, 610 N.E.2d 562 (10th Dist.1992). The

term “abuse of discretion” connotes more than an error of law or judgment; it implies that

the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). In Pons v. Ohio State Medical

Board, 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993), Justice Francis Sweeney

discussed our standard of review as follows: “The appellate court is to determine only if

the trial court has abused its discretion, i.e., being not merely an error of judgment, but

perversity of will, passion, prejudice, partiality, or moral delinquency. Absent an abuse of

discretion on the part of the trial court, a court of appeals may not substitute its judgment

for those of the [administrative body], or a trial court. Instead, the appellate court must

affirm the trial court's judgment.” Renner v. Tuscarawas Cty. Bd. of Commrs., 5th Dist.

Tuscarawas No. 2002AP100077, 2003-Ohio-405, ¶ 12, appeal not allowed, 99 Ohio St.3d Knox County, Case No. 19CA000031 17

1412, 2003-Ohio-2454, 788 N.E.2d 648, citing Lorain City School Dist. Bd. of Edn. v.

State Emp. Relations Bd., 40 Ohio St.3d 257, 260–261, 533 N.E.2d 264 (1988).

{¶46} “On questions of law, however, the common pleas court does not exercise

discretion and the court of appeals review is plenary.” Clovernook Health Care Pavilion

v. Dept. of Medicaid, 10th Dist. Franklin No. 20AP-87, 2021-Ohio-337, 2021 WL 408884,

¶ 9 quoting Black v. State Bd. of Psychology, 160 Ohio App.3d 91, 2005-Ohio-1449, ¶ 5

(10th Dist.). “[W]hether a trial court correctly interpreted and applied a statute is a question

of law” reviewed de novo on appeal. Id. quoting Myers v. Wade, 10th Dist. No. 16AP-667,

2017-Ohio-8833, ¶ 8; 2200 Carnegie, L.L.C. v. Cuyahoga Cty. Bd. of Revision, 135 Ohio

St.3d 284, 2012-Ohio-5691, ¶ 10 (“In the area of administrative procedure, jurisdictional

issues that call for construction of the statutes present questions of law that we review de

novo on appeal.”).

Res Judicata

{¶47} Parker first argues in her brief that the trial court erred when it found that

she waived her right to a judicial remedy. The trial court stated that when Parker “chose

to file a new application in 2015, and chose not to pursue the remedy sought in the first

appeal as granted by this Court in its January 3, 2018 Judgment Entry, that the earlier

application has been abandoned and that the Appellant waived any rights to pursue any

further remedy with respect to the first appeal.” (Judgment Entry, July 30, 2019). Parker

argues the trial court had no basis in fact or law to apply the waiver doctrine.

{¶48} Waiver is ordinarily defined as “an intentional relinquishment or

abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58

S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Parker contends there is no evidence that she Knox County, Case No. 19CA000031 18

waived her remedy granted by the trial court in Case No. 13AP03-0136 as to the 2013

application. She states in her brief that she filed the second license application in 2015

hoping that the ODJFS and the KCDJFS would grant the Type B license based on the

trial court’s ruling in Case No. 13AP03-0136.

{¶49} The ODJFS argues the trial court’s analysis mentions waiver as part of its

broader discussion of the doctrine of res judicata. After discussing waiver, the trial court

next states:

Instead, for whatever reason, the Appellant chose to file a new 2015

Application, and submit the review of the 2015 Application to the revised

administrative code provisions applicable at that time. The review of the

2015 Application by ODJFS, because it was submitted and reviewed

pursuant to administrative code provisions that were not applicable to the

[2013] Application, is not bound by res judicata.

(Judgment Entry, July 30, 2019). We agree with the ODJFS’s interpretation of the

judgment entry that the trial court’s discussion of waiver was part of its analysis of the

larger concept, res judicata. At every level of the proceedings, Parker has raised the issue

of whether the doctrine of res judicata prevented the ODJFS from denying Parker’s 2015

application for a Type B license. In her brief before the trial court, Parker stated, “The

ODJFS erred by failing to issue a license to Tammy and dismiss the appeal based on res

judicata and law of the case in the form of this court’s previous rulings from the bench on

February 27, 2014 and Judgment Entry filed January 2, 2018.” (Merit Brief of Appellants

Tammy and Rick Parker, May 20, 2019). Accordingly, we review the trial court’s judgment

as to its analysis of res judicata. Knox County, Case No. 19CA000031 19

{¶50} Res judicata is defined as “[a] valid, final judgment rendered upon the merits

bars all subsequent actions based upon any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” Grava v. Parkman Twp.,

73 Ohio St.3d 379, 1995–Ohio–331, 653 N.E.2d 226, syllabus. “The doctrine of res

judicata involves both claim preclusion (historically called estoppel by judgment in Ohio)

and issue preclusion (traditionally known as collateral estoppel).” Id. at 381, 653 N.E.2d

226. Claim preclusion “prevents a party from litigating a cause of action after a prior court

has rendered a final judgment on the merits of that cause as to that party.” Krahn v.

Kinney, 43 Ohio St.3d 103, 107, 538 N.E.2d 1058 (1989), citing Norwood v. McDonald,

142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph one of the syllabus. Issue preclusion

“precludes the relitigation of an issue that has been ‘actually and necessarily litigated and

determined in a prior action.”’ Krahn, at 107, 538 N.E.2d 1058, quoting Goodson v.

McDonough Power Equipment, Inc., 2 Ohio St.3d 193, 195, 443 N.E.2d 978 (1983).

{¶51} Parker also contends the trial court was bound by the law of the case

doctrine. The law of the case doctrine provides that a decision of a reviewing court in a

case remains the law of the case on the legal questions involved for all subsequent

proceedings in the case at both the trial and reviewing levels. Bridgestone Americas Tire

Operations, LLC v. Harris, 5th Dist. No. 2019CA00098, 2020-Ohio-76, 150 N.E.3d 1270,

¶ 72 citing U.S. Bank v. Detweiler, 5th Dist. Stark No. 2011 CA00095, 2012-Ohio-73,

2012 WL 75948, ¶ 26.

{¶52} This Court reviews matters of law with a de novo standard of review. Under

that standard, we consider Parker’s contention that res judicata and the law of the case

doctrine bound the trial court to reverse, vacate, or modify the Adjudication Order or make Knox County, Case No. 19CA000031 20

such other ruling as is supported by reliable, probative, and substantial evidence and is

in accordance with law.

February 27, 2014 Ruling and January 2, 2018 Judgment Entry

{¶53} Parker argues the trial court’s February 27, 2014 ruling from the bench and

the January 2, 2018 judgment entry in Case No. 13AP03-0136 preclude the ODJFS from

denying Parker’s 2015 application for a Type B license. In determining whether Case No.

13AP03-0136 precludes the ODJFS from denying Parker a Type B license, we examine

the rulings in that case and the context of those rulings. The circumstances surrounding

the 2013 application will demonstrate the doctrines of res judicata and law of the case are

not applicable to the 2015 application.

{¶54} First, we look to the Ohio Administrative Code regulations in place at the

time of the 2013 application. In 2013, the application and licensure process for a Type B

Home Provider was regulated by former Ohio Admin. Code 5101:2-14-02, eff. 11-15-

2010. The regulation stated:

(A) Individuals interested in certification as a professional type B home

providers or in-home aides to provide publicly funded child care shall

contact the county department of job and family services (CDJFS) to

(2) The CDJFS shall accept, and approve or deny all completed

applications for certification as a professional type B home provider or in-

home aide within one hundred twenty days from the date the CDJFS

receives the completed application. Knox County, Case No. 19CA000031 21

Ohio Admin. Code 5101:2-14-02 (eff. 11-15-2010). Pursuant to these regulations, it was

the sole responsibility of the KCDJFS, as a county department of job and family services,

to accept and approve or deny an application for a Type B license. The ODJFS had no

involvement in the application process for a Type B license in 2013.

{¶55} Next, the record shows the KCDJFS rejected Parker’s 2013 application

because she had a June 20, 2007 substantiated neglect finding from the PCSA. (R. 687).

There was mention in the record that Parker challenged the 2007 revocation of her Type

B license but was unsuccessful in reversing the decision. At the February 27, 2014

hearing, the trial court stated, “I was closely involved in the original case. I heard the facts.

This was not a child care provider physically assaulting, striking, losing their temper,

jerking the arm, none of that. By all accounts it was an accident. And as I look back on it,

I’m not too sure I made the right decision I did in 2007 to be honest with you.” (R. 693-

694). Parker cites this statement from the trial court as evidence that the 2007 license

revocation was in error. The trial court’s opinion about its prior decision as to the 2007

license revocation, however, is not a judgment reversing the 2007 license revocation.

{¶56} Finally, at the conclusion of the February 27, 2014 hearing, the trial court

stated on the record that it disagreed with the blanket policy of the KCDJFS to reject an

application for a Type B license based on one substantiated neglect disposition. (R. 695).

It was the opinion of the trial court that, “You have to stop take a look at the circumstances,

change, events happen * * *.” (R. 695). It is axiomatic, however, that a court speaks only

through its judgment entries. On January 2, 2018, the trial court journalized its ruling in

favor of Parker, stating that “there is no substantiated record or evidence which would Knox County, Case No. 19CA000031 22

otherwise preclude the application to prevent Mrs. Parker from meeting the requirements

necessary for licensure.” (R. 699).

Different Law, Different Parties

{¶57} Parker contends res judicata and law of the case doctrine apply because

the trial court unequivocally rejected the KCDJFS policy of denying an application based

on a substantiated neglect disposition. The Ohio Administrative Code effective at that

time of the 2013 application provided the county department job of family services with

the sole authority to approve or deny a Type B license. If that version of the Ohio

Administrative Code was in effect at the time of the 2015 application, Parker’s argument

regarding res judicata might be successful. The Ohio Administrative Code and the Type

B licensing procedures, however, were amended effective January 1, 2014. Because of

the amendments, we find Parker’s res judicata and law of the case arguments must fail.

{¶58} Effective January 1, 2014, the Ohio Administrative Code was amended to

remove the decision-making authority of the county departments of job and family

services as to the Type B licensure. (R. 690). Pursuant to Ohio Admin. Code 5101:2-14-

02(A), eff. 1-14-2014, “A resident of Ohio who wishes to become a licensed type B home

provider shall contact the county department of job and family services (CDJFS) in the

county in which he or she resides to request a JFS 01643 ‘Application for Licensed Type

B Home’ (rev. 1/2014).” It was the duty of the county department of job and family services

to “recommend applications for approval or denial, to the Ohio department of job and

family services (ODJFS).” Ohio Admin. Code 5101:2-14-02(K)(1) (eff. 1-1-2014). The

Ohio Department of Job and Family Services (“ODJFS”) made the determination whether

to approve or deny the application based on the recommendation of the county Knox County, Case No. 19CA000031 23

department of job and family services. (R. 690-691). Accordingly, in 2015, the decision-

making authority belonged to the ODJFS, not the KCDJFS. Parker states in her appellate

brief that the KCDJFS used the same reasons from the 2013 application to deny the 2015

application. Parker’s statement is incorrect. The KCDJFS denied the 2013 application;

the KCDJFS did not deny the 2015 application. Pursuant to the change in the law, the

KCDJFS made a recommendation to the ODJFS. The ODJFS reviewed and denied the

2015 application. Parker has not provided any regulatory, statutory, or case law authority

to show that the ODJFS was required to follow the recommendation of the county

department of job and family services when the ODJFS determined whether to approve

or deny the Type B license.

{¶59} Claim preclusion “prevents a party from litigating a cause of action after a

prior court has rendered a final judgment on the merits of that cause as to that party.”

Krahn v. Kinney, 43 Ohio St.3d 103, 107, 538 N.E.2d 1058 (1989). Issue preclusion, or

collateral estoppel, precludes relitigation of any “issue that has been actually and

necessarily litigated and determined in a prior action.” Combs v. Oxford Mining Co., 5th

Dist. Tuscarawas No. 2018 AP 05 0022, 2020-Ohio-876, 2020 WL 1157963, ¶ 33 citing

Fort Frye Teachers Assn. v. State Emp. Rels. Bd., 81 Ohio St.3d 392, 692 N.E.2d 140

(1998). An issue “that was actually and directly at issue in a previous action, that was

passed upon and determined by a court of competent jurisdiction, may not be drawn into

question in a subsequent action between the same parties or their privities, whether the

cause of action in the two actions be identical or different.” Id.

{¶60} In Case No. 13AP03-1036, the trial court rendered a final judgment on the

merits of the 2013 application involving Parker and the KCDJFS, pursuant to the Knox County, Case No. 19CA000031 24

regulations of the Ohio Administrative Code effective November 15, 2010. The trial court

found the blanket policy of the KCDJFS in approving or denying Type B applications was

impermissible. In the 2015 application, the parties involved were Parker and the ODJFS,

both bound by amended regulations of the Ohio Administrative Code, effective January

1, 2014. The law and the parties are different; therefore, we find the doctrines of res

judicata and law of the case did not bar the ODJFS from denying Parker’s 2015

application for a Type B license.

Reliable, Probative, and Substantial Evidence

{¶61} Parker next argues the trial court abused its discretion when it found there

was reliable, probative, and substantial evidence to support the Adjudication Order

denying Parker’s 2015 application for a Type B license. We disagree.

{¶62} The denial of Parker’s Type B license was based on Ohio Admin. Code

5101:2-14-04(A)(7) (eff. 1-1-2014). The regulation states:

(A) If a licensed type B home provider or applicant does any of the following,

the county department of job and family services (CDJFS) may recommend

to the Ohio department of job and family services (ODJFS) the denial of an

application or revocation of a provisional or continuous license:

*** (7) The CDJFS has determined through the results of the child abuse and

neglect report or any other means pursuant to rule 5101:2-14-07 of the

Administrative Code, that there is an individual, of any age, who resides in

the home and whose behavior or health may endanger the health, safety or

well-being of children in care at the home. Knox County, Case No. 19CA000031 25

Ohio Admin. Code 5101:2-14-04(A)(7) (eff. 1-1-2014). The KCDJFS recommended that

the ODJFS deny Parker’s application for a Type B license based in part on a 1993 and

2007 substantiated neglect dispositions by the PCSA.

{¶63} Parker argues she presented evidence before the Hearing Examiner

challenging the 1993 and 2007 substantiated neglect dispositions by the PCSA. Tammy

and Rick Parker testified about the 2007 incident and that it was an accident, not neglect,

that caused a minor injury to an infant. They argued the 1993 substantiated neglect finding

was fraudulent. Parker contends that the KCDJFS, specifically Purdy, is biased against

her, which resulted in the negative recommendation. The KCDJFS recommendation,

however, was based on the substantiated neglect dispositions by the PCSA, for which

Purdy testified she had no responsibility in creating. She received a complaint regarding

the 2007 incident and informed Children’s Services, which completed its own

investigation resulting in the substantiated neglect finding. The ODJFS argues Parker has

failed to present any authority to demonstrate that the county department of job and family

services or the ODJFS is not permitted to rely upon a substantiated neglect finding by the

PCSA when making a recommendation or determining whether to approve or deny an

{¶64} The Hearing Examiner found the KCDJFS considered multiple factors in

recommending denial of Parker’s application including two separate incidents of injuries

to infants resulting from the lack of supervision while in Parker’s care, Parker’s refusal to

take responsibility for the incidents and minimalization of the incidents, Tammy and Rick

Parker’s respected histories of substantiated neglect, and the KCDJFS concern that

licensing Parker would be a liability. (R. 727). After considering Parker’s objections to the Knox County, Case No. 19CA000031 26

Report and Recommendation, the Director of the ODJFS adopted the Hearing Examiner’s

findings of fact.

{¶65} The findings of the ODJFS are not conclusive, but the trial court must give

due deference to the administrative agency's resolution of evidentiary conflicts. Licking

Cty. Veterans Services Commission v. Holmes, 5th Dist. Licking No. 19-CA-75, 2020-

Ohio-3294, 2020 WL 3125277, ¶ 27 citing University of Cincinnati v. Conrad, 63 Ohio

St.2d 108, 111, 407 N.E.2d 1265 (1980); See also Jones v. Franklin Cty. Sheriff, 52 Ohio

St.3d 40, 43, 555 N.E.2d 940 (1990) citing Graziano v. Amherst Exempted Village Bd. of

Edn., 32 Ohio St.3d 289, 293, 513 N.E.2d 282 (1987) [noting “due deference must be

accorded to the findings and recommendations of the [ALJ] * * * because it is the [ALJ]

who is best able to observe the demeanor of the witnesses and weigh their credibility”].

{¶66} This Court's review of the administrative appeal is through a much smaller

window than that of the trial court. We only determine whether the trial court abused its

discretion in considering whether the decision of the administrative body was supported

by a preponderance of the evidence. Rhodes v. Ohio Counselor, Social Worker &

Marriage & Family Therapist Bd., 5th Dist. Muskingum No. CT2009-0011, 2009-Ohio-

5666, 2009 WL 3440027, ¶ 37

{¶67} In this case, we find the trial court did not abuse its discretion when it

determined the Adjudication Order denying Parker’s 2015 Type B license application was

supported by reliable, probative, and substantial evidence. The evidence in this case

supported the determination that that there is an individual, of any age, who resides in the

home and whose behavior or health may endanger the health, safety, or well-being of Knox County, Case No. 19CA000031 27

children in care at the home pursuant to Ohio Admin. Code 5101:2-14-04(A)(7) (eff. 1-1-

2014).

CONCLUSION

{¶68} The Assignments of Error of Plaintiff-Appellant Tammy Parker are

overruled.

{¶69} The judgment of the Knox County Court of Common Pleas is affirmed.

By: Delaney, J.,

Baldwin, P.J. and

Wise, John, J., concur.