COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61177 TERRY HUNTER : : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : CUYAHOGA COUNTY : OPINION DEPARTMENT OF HUMAN SERVICES : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-190981 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ABRAHAM KAY 2200 Illuminating Building 55 Public Square Cleveland, Ohio 441133 For Defendant-Appellee: ATTORNEY GENERAL LEE FISHER REBECCA FIST Assistant Attorney General 30 East Broad Street, l5th Fl. Columbus, Ohio 43215 -2- SPELLACY, J.: Appellant Terry Hunter appeals the trial court's decision to affirm the Ohio Department of Human Services' ("ODHS") order requiring her to repay welfare benefits. Appellant raises the following assignments of error: I. THE TRIALS COURT ERRED IN NOT REVERSING THE ADMINISTRATIVE DECISION FINDING TERRY HUNTER RESPONSIBLE FOR THE REPAYMENT OF BENEFITS PAID TO SIDNEY HUNTER IN THE ABSENCE OF EVIDENCE THAT TERRY HUNTER EITHER APPLIED FOR OR RECEIVED BENEFITS. II. THE TRIAL [SIC] ERRED IN NOT REVERSING THE ADMINISTRATIVE DECISION FINDING TERRY HUNTER RESPONSIBLE FOR THE REPAYMENT OF BENEFITS TO WHICH SHE WAS ENTITLED IF SHE WAS IN FACT SEPARATED FROM SIDNEY HUNTER, IN THE ABSENCE OF A FINDING THAT SHE WAS NOT SEPARATED, IN IN [SIC] LIGHT OF EVIDENCE OF SUCH SEPARATION. We find appellant's assignments of error to be without merit and affirm. I. After a hearing, ODHS found appellant liable for overpayments of aid to dependent children ("ADC") and food stamp benefits made to her and her former husband Sidney Hunter. ODHS affirmed this order after an administrative appeal. Appellant then appealed to the trial court which also affirmed the order. II. In her first assignment of error, appellant contends the trial court erred when it affirmed ODHS's order because there was -3- no evidence that she either applied for or received the benefits. Appellant supports her contention by arguing the agency rule under which she was found liable for overpayments of ADC, OAC 51- 5101:1-25-34, is invalid. First, appellant argues ODHS exceeded its authority when it promulgated OAC 5101:1-25-34. Rules promulgated by an agency must be consistent with and predicated on an express or implied grant of authority. DDDJ, Inc. v. Ohio Liquor Control Comm. (1990), 64 Ohio App. 3d 828, 831. "An administrative rule is not inconsistent with a statute unless the rule contravines or is in derogation of some express provision of the statute." McAnich v. Crumbley (1981), 65 Ohio St.2d 31, 34. OAC 5101:1-25-34 provides: 1 The CDHS shall recover an overpayment from any or all of the following individuals or assistance units. Each of these parties is responsible for repayment of the entire over-payments. *** The CDHS may recover an overpayment from any *** individual who was a member of the overpaid assistance unit at the time of the overpayment, regardless of whether the 1 CDHS is an abbreviation for county departments of human services. 2 OAC 5101:1-21-011 provides, in pertinent part: The ADC standard filing unit (assistance group) shall include the natural or adoptive parent(s) and all minor siblings living with a dependent child who applies for and receives ADC. The standard filing unit (SFU) provision only applies to those individuals residing in the same household. -4- individual is currently receiving assistance or is eligible for assistance. Recovery may be made against the individual even though he is no longer a member of the overpaid assistance unit and even though he did nothing to cause the overpayment. (Emphasis added.) ODHS's authority to promulgate OAC 5101:1-25-34 is derived from R.C. 5107.02 and R.C. 5107.04. At the time of appellant's hearing, R.C. 5107.02 provided: The department of human services shall administer sections 5107.02 to 5107.15 of the Revised Code. The department may: *** Provide, by rules or otherwise, for putting into effect such methods of administration and procedure as are found by the administration or the department to be necessary to the efficient operation of the plan in the respective counties. R.C. 5107.04 provided: As used in this section, "erroneous payments" means payments of aid made under sections 5107.02 to 5107.15 of the Revised Code to persons who are not entitled to receive them ***. The county department of human services shall take action to recover erroneous payments, which may include instituting a civil action. Whenever aid has been furnished to a recipient for whose support another person is responsible such other person shall, in addition to the liability otherwise imposed, as a consequence of failure to support such recipient, be liable for all aid furnished to such recipient. *** (Emphasis added.) 3 R.C. 5107.02 to R.C. 5107.15 concern ADC. -5- We find that OAC 5101:1-25-34 is predicated on an express grant of authority from R.C. 5107.04 and neither contravines nor derogates an express provision of R.C. 5107.04. Considering all members of an assistance group to be persons who have received erroneous payments is not inconsistent with R.C. 5107.04. This conclusion is supported by the language in R.C. 5107.04 which emphasizes that anyone who is responsible for the support of a recipient is liable for overpayments to that recipient. A recipient is obviously the child for whom ADC is provided. We conclude, therefore, that ODHS did not exceed its authority when it promulgated OAC 5101:1-25-34. Second, appellant argues, without giving reasons or citation to authority, that OAC 5101:1-25-34 is unconstitutional for "due 4 process considerations." Under App. R. 12(A) any errors not separately argued by brief may be disregarded. App. R. 16(4)(A) requires that an appellant's brief contain the contentions of the appellant and reasons for these contentions with citation to authority. In addition, when challenging the constitutionality of a statute, an appellant must include citation to the section of the constitution with which the statute conflicts and reasons for concluding the statute is unconstitutional. Foster v. Bd. of Elections (1977), 53 Ohio App.2d 213, 228. 4 Appellant appears to include the issue of food stamp benefits in this argument. -6- We find appellant has failed to comply with the Appellate Rules and disregard her argument. Accordingly, appellant's first assignment of error is not well taken. III. In her second assignment of error, appellant, arguing she separated from Sidney Hunter in July 1985, contends the trial court erred when it found her liable for overpayments of ADC and food stamp benefits from August 1985 to June 1987 because she is entitled to an "offset." Appellant, however, fails to provide any authority supporting her contention that she is entitled to an offset. Accordingly, appellant's second assignment of error is not well taken. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DYKE, P.J., AND JAMES D. SWEENEY, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .