[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.
