In re A.J. , 2014 Ohio 3755 ( 2014 )

[Cite as In re A.J., 2014-Ohio-3755.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
IN RE: A.J., B.J., & M.R. : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
(Mother's Appeal) :
: Case No. 14-CA-35
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
Nos. F2011-0601; F2011-0603; F2012-
0447
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 26, 2014
APPEARANCES:
For Father-Appellant: For Licking County DJFS-Appellee:
MICHAEL R. DALSANTO LIA MEEHAN
3 South Park Place, Suite 220 20 S. Second Street, Fourth Floor
Newark, OH 43055 Newark, OH 43055
For Mother-Appellant Guardian ad Litem:
DREAMA BOGART SHEENA SJOSTRAND-POST
P.O. Box 30402 195 E. Broad St.
Gahanna, OH 43230 Pataskala, OH 43062
Licking County, Case No.14-CA-35 2
Delaney, J.
{¶1} Mother-Appellant Crystal Rosumenko appeals the April 4, 2014 judgment
entry of the Licking County Court of Common Pleas, Juvenile Division terminating her
parental rights as to B.J., A.J., and M.R.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellant Robert Johns is the Father of B.J. (born June 12, 2001) and A.J.
(born November 23, 2004). Appellant Crystal Rosumenko is the Mother of B.J., A.J.,
and M.R. (born May 18, 2012). Paul Rosumenko is the father of M.R.1
{¶3} Licking County Department of Job and Family Services ("LCDJFS")
became involved with the family in June 2011. A voluntary case was opened due to
allegations of Mother's substance abuse and poor home conditions. Mother was
enrolled in the Licking County Alcoholism Prevention Program (LAPP). Mother resided
with Paul Rosumenko and married him on September 5, 2011. Paul Rosumenko is a
registered sex offender with past charges of domestic violence, menacing, and a
violation of the civil stalking protection order. In October 2011, Paul Rosumenko was
sent to prison for a probation violation. Mother's case with LAPP was closed because of
Mother's poor attendance.
{¶4} In October 2011, LCDJFS filed a dependency complaint for A.J. and B.J.
The children were placed under protective supervision and placed in Father's home. In
December 2011, A.J. and B.J. were adjudicated dependent.
{¶5} While A.J. and B.J. resided with Father, LCDJFS provided Father with
multiple resources to assist with the care of the children. B.J. had anger, anxiety, and
attachment issues. A.J. was diagnosed with post-traumatic stress syndrome and
1
Paul Rosumenko has not filed an appeal of the April 4, 2014 judgment entry.
Licking County, Case No.14-CA-35 3
attention deficit disorder. Both children took medication. Father at one point due to a
lack of medication for one child, gave the one child the other's medication. The children
suffered from lice and Father's home had bed bugs. Father moved from the home to a
one-bedroom apartment. Father had serious health issues related to a hip replacement
requiring Father to stay in a nursing home during his recovery in August 2012. The
LCDJFS resources assisted Father with understanding the need to keep a clean and
safe home and provide the children with structure. The resource providers stated there
was no doubt Father loved his children, but he struggled with caring for the children and
their special needs. One resource provider stated that Father would hear but not listen
to the recommendations.
{¶6} On March 12, 2012, LCDJFS filed a motion to modify in B.J.'s case,
asking that his disposition be modified from protective supervision to temporary custody,
due to B.J.'s behavioral issues. While residing with Father, B.J. was truant from school
at least 45 days. B.J. stabbed a teacher with a pencil. On May 24, 2012, the court
granted the motion and B.J. was placed in a treatment foster home.
{¶7} A.J. was returned to Mother's custody, subject to protective supervision.
While A.J. resided with Mother, Mother was residing with Nick Hutchinson and his
daughter. Nick Hutchinson was a violent alcoholic. There were unsubstantiated
allegations that Nick Hutchinson and his daughter sexually abused A.J. LCDJFS
received complaints of problems in Mother's home such as parties and questionable
people in the home.
{¶8} M.R. was born on May 18, 2012.
Licking County, Case No.14-CA-35 4
{¶9} On July 17, 2012, LCDJFS sought and obtained an ex parte emergency
order granting shelter care of A.J. and M.R. Mother tested positive for oxycodone.
Mother has been diagnosed with an opioid related disorder. Shelter care was granted
on July 18, 2012. On November 9, 2012, M.R. was adjudicated dependent and placed
in the temporary custody of LCDJFS. A.J. was also placed in the temporary custody of
LCDJFS. A.J. was placed in the treatment foster home with B.J.
{¶10} On May 17, 2013, Paul Rosumenko was sentenced to six years in prison
for aggravated burglary and domestic violence, where Mother was the victim of the
domestic violence charge.
{¶11} On May 31, 2013, LCDJFS filed a motion for permanent custody. A
hearing before the magistrate was held on October 11 and 14, 2013.
{¶12} Ryan Houck, the family's caseworker, testified LCDJFS has worked with
the family for two years and five months and has not seen improvement in Mother or
Father to allow for reunification with the children. The guardian ad litem recommended
that permanent custody be granted to LCDJFS.
{¶13} On November 26, 2013, the magistrate issued his decision recommending
that permanent custody of A.J., B.J., and M.R. be granted to LCDJFS.
{¶14} Mother filed objections to the magistrate's decision. The trial court set a
non-oral hearing on January 17, 2014.
{¶15} On April 4, 2014, the trial court adopted the decision of the magistrate and
granted permanent custody of A.J., B.J., and M.R. to LCDJFS.
{¶16} It is from this decision Mother now appeals.
Licking County, Case No.14-CA-35 5
ASSIGNMENTS OF ERROR
{¶17} Mother raises one Assignment of Error:
{¶18} "THE TRIAL COURT ERRED IN GRANTING LICKING COUNTY JOB
AND FAMILY SERVICES, CHILDREN'S SERVICES MOTION FOR PERMANENT
CUSTODY BECAUSE LICKING COUNTY JOB AND FAMILY SERVICES, CHILDREN
SERVICES FAILED TO EXERCISE DUE DILIGENCE IN ITS INVESTIGATION OF
POSSIBLE RELATIVE PLACEMENT REQUIRED BY R.C. 2151.412.(G) ET SEQ. AND
OHIO ADM. CODE 5101:2-39-01 ET SEQ."
ANALYSIS
{¶19} Mother argues in her sole Assignment of Error that LCDJFS did not,
pursuant to R.C. 2151.412, consider whether extended family members would be
suitable custodians for the children. Because LCDJFS failed in their duty, Mother
argues the trial court erred when it held that LCDJFS made reasonable efforts to avoid
removal of the children. We disagree.
{¶20} R.C. 2151.412(H)(2) states:
(H) In the agency's development of a case plan and the court's review of
the case plan, the child's health and safety shall be the paramount
concern. The agency and the court shall be guided by the following
general priorities:
***
(2) If both parents of the child have abandoned the child, have
relinquished custody of the child, have become incapable of supporting or
caring for the child even with reasonable assistance, or have a detrimental
Licking County, Case No.14-CA-35 6
effect on the health, safety, and best interest of the child, the child should
be placed in the legal custody of a suitable member of the child's
extended family;
***
{¶21} Mother concedes that LCDJFS was under no statutory duty to make
reasonable efforts to place the children with a relative. The Fourth District Court of
Appeals stated:
As the leading paragraph of R.C. 2151.412(G) makes clear, the
language of this code section is precatory. We discussed this issue
recently in In re M.O., Ross App. No. 10CA3189, 2011–Ohio–2011, at ¶
15:
‘Ohio's courts have consistently recognized that the language in
R.C. 2151.412(G) is precatory, not mandatory.’ In re A.E., Franklin
App. Nos. 07AP685 & 07AP–748, 2008–Ohio–1375, at ¶ 35, citing
In re Halstead, Columbiana App. No. 04 CO 37, 2005–Ohio–403, at
¶ 39, in turn, citing In re Hiatt (1993), 86 Ohio App. 3d 716, 722, 621
N.E.2d 1222. As the Seventh District explained:
[T]his statute does not command the juvenile court to act in a
specific manner. Instead, it sets out general, discretionary priorities
to guide the court. So while the guidelines may be helpful to the
juvenile court, it is not obligated to follow them. Therefore, the
juvenile court's judgment is not in error simply because the court
Licking County, Case No.14-CA-35 7
chose not to follow one of these suggested guidelines. Halstead at
¶ 39.”
In M.O., we went on to hold that a public children services agency
has no statutory duty to make “reasonable efforts” to place the child with
an extended family member before it can obtain permanent custody of the
child. Id. at ¶ 16.
In re M.H., 4th Dist. Vinton No. 11CA683, 2011-Ohio-5140, ¶ 44-45.
{¶22} Mother argues that LCDJFS was required to exercise due diligence to
investigate whether there was a potential relative placement under Ohio Adm.Code
5101:2-39-01(P)(1) before moving for permanent custody. She states the record in this
case shows that LCDJFS did not investigate relative placement for the children;
therefore, LCDJFS did not make reasonable efforts prior to the removal of the children
from Mother’s custody.
{¶23} At the permanent custody hearing, Ryan Houck, caseworker for the family,
testified she was provided relative or kinship placements by Father and Mother but the
three that LCDJFS were able to explore were ruled out based on the Ohio Revised
Code. (T. 192).
{¶24} The record in this case shows that LCDJFS made reasonable efforts to
place the children with a suitable relative but its investigation revealed there was no
relative suitable for placement. Accordingly, the trial court did not err in granting
permanent custody of the children to LCDJFS based on Mother's argument in the
present appeal.
Licking County, Case No.14-CA-35 8
CONCLUSION
{¶25} Mother's sole Assignment of Error is overruled.
{¶26} The judgment of the Licking County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.,
Farmer, P.J. and
Wise, J., concur.