[Cite as In re S.Y., 2011-Ohio-4621.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

S.Y., C.F., AND A.F. 

 

 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 2011AP04 0018 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County 

Court of Common Pleas, Juvenile Division, 

Case No. 10JN00568 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: September 13, 2011 

APPEARANCES: 

For: Children For: TCJ&FS 

SHARON BUCKLEY-MIRHAIDARI DAVID W. HAVERFIELD 

152 North Broadway 389 16th St. S.W. 

New Philadelphia, OH 44663 New Philadelphia, OH 44663 

 For: Tanika York 

KAREN DUMMERMUTH JOHN A. GARTRELL 

Guardian Ad Litem 153 North Broadway 

Box 494 New Philadelphia, OH 44663 

New Philadelphia, OH 44663 

 For: Matthew Frame 

 SETH W. ARKOW 

 221 Front Avenue S.W. 

 New Philadelphia, OH 44663 

 
[Cite as In re S.Y., 2011-Ohio-4621.]

Gwin, P.J. 

{¶1} Appellant Tuscarawas County Job & Family Services [(hereinafter 

“TCJFS”] appeals the April 20, 2011 judgment entry of the Tuscarawas County Court of 

Common Pleas, Juvenile Division, which removed S.Y. from his grandmother’s home 

and placed him in the temporary custody of the agency. 1

I. Procedural History 

{¶2} The instant action concerns three children of Tanika York. S.Y. is the 

oldest and is the child of Tanika York and Shane Goins. He is three years old.2 

{¶3} The instant action was initiated by the filing of a complaint by TCJFS on 

November 9, 2010, alleging that these children were Abused, Neglected, and 

Dependent. The basis for said filing occurred when A.F., who was only 3 months old at 

the time, was treated at Children’s Hospital Medical Center in Akron for a skull fracture. 

Both he and C.F. were with Tanika York. Her explanation of said injuries was not 

consistent with the observation of medical professionals. 

{¶4} At the time of the filing of the complaint, S.Y. was residing with his 

maternal grandmother, Carla York. He had been residing with his grandmother since 

April 2010. In August, 2010, Ms. York filed a Grandparent Power of Attorney with the 

Tuscarawas County Juvenile Court advising that S.Y. was residing with her.3

 

{¶5} By Judgment Entry filed January 5, 2011 all three children were 

adjudicated Dependent pursuant to RC 2151.04, Neglected pursuant to RC 2151.03 

 1

 No appellee brief has been filed. 

2

 C.F. and A.F. are the children of Tanika York and Matthew Frame. These children have 

remained in the custody of their father during the pendency of this action and are not the subject of the 

within appeal. 3

 R.C. 3109.74 
Tuscarawas County, Case No. 2011AP04 0018 3 

and Abused pursuant to RC 2151.031. The court ordered S.Y. to remain in the custody 

of Ms. York pending the dispositional hearing.4

{¶6} The dispositional hearing was begun on February 1, 2011. TCJFS 

presented one witness on that date due to logistical concerns and the number of 

witnesses. 

{¶7} The first witness called by TCJFS was Leslie Chase. Ms. Chase is 

employed by the Help Me Grow program as a Service Coordinator. She became 

involved with S.Y. after he was evaluated in June 2010 and recommended for services. 

All services were set up and accessed by Carla York. Ms. Chase testified that she had 

no concerns about the home of Ms. York or the care she was providing for S.Y. She 

went on to indicate that Carla was nurturing, caring, and committed to making sure that 

S.Y. received the services he needed, and she wished all the families she dealt with 

were as a committed as Carla York. She further opined that she noted progress for S.Y. 

while placed in his grandmother’s home. 

{¶8} The dispositional hearing concluded on February 23, 2011. Shelly 

Clemence, a teacher at the Starlight School for the past sixteen years testified she has 

been S.Y.’s teacher since December 2010, which was the earliest time he was old 

enough to enroll. She noted no behavioral or attendance problems with S.Y., and he 

was doing well in her class and making gains. Ms. Clemence testified that she made 

regular visits to the home of Carla York, and she had no concerns with her care or 

follow through. She further provided information to the court that S.Y. suffered from a 

significant speech delay and was probably one year behind for his age. 

 4

 A transcript of the adjudicatory hearing held January 4, 2011 was not filed and made a part of 

the record in this appeal. 
Tuscarawas County, Case No. 2011AP04 0018 4 

{¶9} Barb Rice, a speech pathologist with a master’s degree and over 30 years 

of experience, testified next. She had been providing speech therapy to S.Y. since April 

2010. She testified that he had stabilized while at his grandmother’s house, and that 

Carla York was appropriately involved in addressing this issue, including following 

through on suggestions she made. Ms. Rice further testified that the key to his success 

was stability and putting his needs first, and that he needed a consistent routine. 

{¶10} David Garbrandt a Juvenile Probation Officer for the court testified that he 

was familiar with Carla York’s children, having acted as the probation officer for T.J. 

York, the eldest child of Carla York. Mr. Garbrandt testified that his involvement with T. 

J. consisted of unruly behavior and violation of court orders; there were never any 

felony charges or aggressive behaviors. Mr. Garbrandt became involved with T.J. in 

2004 when he was 14 years of age. Mr. Garbrandt described Carla York as always 

cooperative, doing what was asked of her and not uncooperative in any regard. He 

described her response to her son’s behavior as ineffective. She was not doing 

anything wrong; it just was not impacting his behavior in a positive way. Mr. Garbrandt 

testified that T.J. was placed at Rogers Group Home for a period of time after his 

mother could no longer manage his behavior. This was the one time that she called and 

requested that he be removed from her home. In fact, he received necessary mental 

health treatment at that facility that seemed to positively impact his behavior for a period 

of time after he returned home. Mr. Garbrandt testified that during his involvement, he 

never had any concerns related to child abuse or neglect that required him to make a 

report to the agency. However, he expressed his concern about a placement of a young 
Tuscarawas County, Case No. 2011AP04 0018 5 

child into the home of Carla York based upon the delinquent behavior of her own 

children and her inability to have any impact in changing that behavior. 

{¶11} Mr. Jeff Kiggans is an attorney licensed to practice law in Ohio and is 

employed by TCJFS. Mr. Kiggans was the initial attorney at TCJFS handling this case. 

He testified that the complaint in this case was filed in November 2010. Mr. Kiggans 

recalled having some concerns relative to Carla York brought to his attention. He was 

advised that the court may have concerns about this placement. As a result of the 

same, he and Cindy McGuire, the agency intake worker contacted David Garbrandt by 

telephone to discuss this matter. He testified that nothing during their conversation 

caused him to have concern regarding the placement of the child with Carla York. 

{¶12} Mr. Kiggans testified that the child had been placed with Carla York 

pursuant to a Grandparent Power of Attorney since August 13, 2010. This affidavit was 

filed with Tuscarawas County Juvenile Court and predated the involvement of the 

agency. A certified copy of this power of attorney was entered into evidence at the 

hearing. Mr. Kiggans, a licensed attorney, testified that the power of attorney is 

authorized by the Ohio Revised Code and, while it does not actually change custody, it 

does empower a grandparent to enroll a child in school and obtain necessary medical 

treatment. 

{¶13} Elizabeth Benedetto, the ongoing case manager testified that she made 

regular drop-in visitations at the home of Carla York and had no concerns. Additionally, 

she was in regular contact with the service providers and was pleased with the 

information she was receiving. She testified that Carla had been in her current 
Tuscarawas County, Case No. 2011AP04 0018 6 

residence for one year, and that all the bills were being paid. Her paramour, Mr. John 

Head, was employed and providing adequate income. 

{¶14} Ms. Benedetto testified that at the early juncture in the case, she believed 

it too early to make any long-term decisions regarding S.Y.’s placement. Ms. Benedetto 

also testified that she had reviewed the entirety of the juvenile court history of the 

children of Carla York. She confirmed that the testimony of Mr. Garbrandt concerning 

T.J. York was consistent with her review of the same. She further testified that Tanika 

York, Carla’s daughter was charged one time with an unruly charge when Tanika was 

seventeen years old. The juvenile probation records disclosed that she was 

progressing satisfactorily and was maintained in her mother’s custody. 

{¶15} Ms. Benedetto testified that she did not share the probation staff’s concern 

with a placement with Carla York. She testified to her concern regarding regression in 

his behavior and advances he had made while with his grandmother. She expressed 

concern about this regression, particularly in light of the delays from which this child 

already suffered. 

{¶16} Lastly, Ms. Benedetto testified regarding psychological evaluations that 

the court ordered for both Carla York and her paramour John Head. Copies of the 

assessments were entered into evidence. As noted in the report, Dr. Anita Exley, the 

psychologist conducting the assessments, specifically recommended that the child 

remain with Carla York, noting no particular concern in her assessment or that of Mr. 

Head 

{¶17} Ms. Benedetto discussed the history of Children Services involvement with 

Carla York dating back to 1992. When asked she simply read the dates, the allegations 
Tuscarawas County, Case No. 2011AP04 0018 7 

and the dispositions into the record. (T. at 111). The records from those previous 

involvements were not entered into evidence or otherwise made a part of the record. 

She also testified that the history of Carla York was indeed relevant to an assessment of 

her home. However, given the positive changes she has made and how well S.Y. was 

doing in her home, she believed that the same significantly overcame her history. 

{¶18} The report of the Guardian Ad Litem [hereinafter “GAL”] was file with the 

Court on February 1, 2011. This report likewise summarily discusses various cases filed 

against Carla York or her children dating back as far as 1992. The GAL concludes that 

Carla York has been able to put S.Y.’s needs first for the past year and S.Y. is 

progressing as a result. 

{¶19} By judgment entry dated April 20, 2011, the juvenile court removed S.Y. 

from his grandmother’s home and placed him in the temporary custody of the agency. 

{¶20} It is from this entry that TCJFS has appealed. 

II. Assignments of Error 

{¶21} On appeal, TCJFS asserts the following assignments of error: 

{¶22} “I. THE TRIAL COURT IMPROPERLY CONSIDERED EVIDENCE THAT 

WAS NOT PART OF THE RECORD BELOW IN REACHING ITS CONCLUSION TO 

REMOVE S.Y. FROM THE TEMPORARY CUSTODY OF HIS GRANDMOTHER. THE 

TRIAL COURT’S CONSIDERATION OF EVIDENCE OUTSIDE THE RECORD 

DEPRIVED THE AGENCY OF PROCEDURAL DUE PROCESS AS GUARANTEED BY 

THE UNITED STATES CONSTITUTION. 
Tuscarawas County, Case No. 2011AP04 0018 8 

{¶23} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN REMOVING S.Y. 

FROM THE TEMPORARY CUSTODY OF HIS GRANDMOTHER AT THE 

DISPOSITIONAL HEARING.” 

A. Burden of Proof. 

{¶24} In the case at bar, appellant, the parents and the grandmother did not 

appeal the trial court’s finding at the adjudicatory phase that S.Y. is a Dependant, 

Neglected or Abused child. 

{¶25} After a child has been adjudicated as dependent neglected or abused, the 

trial court can make an order of disposition as set forth in R.C. 2151.353(A). 

{¶26} R.C. 2151.353(A) states in pertinent part that, “If a child is adjudicated an 

abused, neglected, or dependent child, the court may make any of the following orders 

of disposition: 

{¶27} “(1) Place the child in protective supervision; 

{¶28} “(2) Commit the child to the temporary custody of a public children 

services agency, a private child placing agency, either parent, a relative residing within 

or outside the state, or a probation officer for placement in a certified foster home or in 

any other home approved by the court; 

{¶29} “(3) Award legal custody of the child to either parent or to any other person 

who, prior to the dispositional hearing, files a motion requesting legal custody of the 

child; 

{¶30} “(4) Commit the child to the permanent custody of a public children 

services agency or private child placing agency* * *.” 
Tuscarawas County, Case No. 2011AP04 0018 9 

{¶31} “A juvenile court must consider the ‘best interests' of the child when it 

considers the statutorily permissible dispositional alternatives enumerated in R.C. 

2151.353(A).” In the matter of: Jacob, Nicholas, Neil, and Clair Barcelo (June 26, 1998) 

Geauga App. No 97-G-2095, citing In re Cunningham (1979), 59 Ohio St.2d 100, 107, 

391 N.E.2d 1034. See also, In re Brown (2001), 142 Ohio App.3d 193, 755 N.E.2d 365; 

In re Pryor (1993), 86 Ohio App.3d 327, 620 N.E.2d 973. 

{¶32} Once the juvenile court adjudicates a child dependent, the court may 

award legal custody of the child to a parent or to a non-parent upon a timely motion. 

See R.C. 2151.353(A)(3). In doing so, the juvenile court shall consider the best interest 

of the child. R.C. 2151.42(A). This procedure does not constitute a “termination of all 

residual parental rights, privileges, and responsibilities,” and therefore, does not 

foreclose the ability of the parents or the appellant to seek a change of custody in the 

future, in accordance with R.C. 2151.42. In re C.R., 108 Ohio St.3d 369, 2006-Ohio1191 at ¶ 23. 

{¶33} R.C. 2151.353(E)(2) allows any party, other than the parents whose 

parental rights have been terminated, to move for an order modifying or terminating any 

dispositional order, including an award of temporary or permanent custody. The statute 

provides: 

{¶34} “Any public children services agency, any private child placing agency, the 

department of job and family services, or any party, other than any parent whose 

parental rights with respect to the child have been terminated pursuant to an order 

issued under division (A)(4) of this section, by filing a motion with the court, may at any 

time request the court to modify or terminate any order of disposition issued pursuant to 
Tuscarawas County, Case No. 2011AP04 0018 10 

division (A) of this section or section 2151.414 [2151.41.4] or 2151.415 [2151.41.5] of 

the Revised Code. The court shall hold a hearing upon the motion as if the hearing were 

the original dispositional hearing and shall give all parties to the action and the guardian 

ad litem notice of the hearing pursuant to the Juvenile Rules. If applicable, the court 

shall comply with section 2151.42 of the Revised Code. 

{¶35} Unlike in a permanent custody proceeding where a juvenile court's 

standard of review is by clear and convincing evidence, a juvenile court's standard of 

review in legal custody proceedings is by a preponderance of the evidence. Id.; In re 

Nice (2001), 141 Ohio App.3d 445, 455; In re A. W.-G. A preponderance of the 

evidence is “evidence which is of greater weight or more convincing than the evidence 

which is offered in opposition to it.” In re Nice (2001), 141 Ohio App.3d 445, 455; In re 

Law, Tuscarawas App. No. 2003 AP 06 45, 2004-Ohio-117 at ¶14. If the court's 

decision regarding legal custody is not supported by competent, credible evidence, then 

it is unreasonable and we may reverse it. Nice, 141 Ohio App. 3d at 455, 751 N.E. 

2d 552; In re Law, 2004-Ohio-117 at ¶14. 

{¶36} Grandparents generally have no legal rights of access to their 

grandchildren. In re Fusik, Athens App.No. 02CA16, 2002-Ohio-4410, citing In re 

Whitaker (1988), 36 Ohio St.3d 213, 214, 522 N.E.2d 563; In re Martin, 68 Ohio St.3d 

250, 1994-Ohio-506. Additionally, the Ohio Supreme Court has stated that grandparents 

have no constitutional right of association with their grandchildren. See In re Schmidt

(1986), 25 Ohio St.3d 331, 336, 496 N.E.2d 952. Nonetheless, the General Assembly 

has provided dispositional options which impact the role of grandparents in 

dependency, neglect, and abuse cases. Among these are R.C. 2151.415(A)(3), which 
Tuscarawas County, Case No. 2011AP04 0018 11 

permits a grant of legal custody to a relative, and R.C. 2151.415(F), which permits a 

parent to file a motion seeking relative placement of the child. 

{¶37} In the case at bar, the grandmother did not file a motion seeking legal 

custody of S.Y. Nor did the parents file a motion seeking relative placement. However, 

as a preliminary matter the question in this appeal is not whether grandmother had a 

right to custody of S.Y. but rather whether TCJFS may assert the grandmother’s rights. 

B. Standing. 

{¶38} In its two assignments of error TCJFS argues that the trial court 

considered evidence outside the record and abused its discretion by removing S.Y. from 

his grandmother’s custody. Prior to considering the merits of appellant’s assignments of 

error, we find it necessary to address the issue of standing (i.e. whether appellant, 

TCJFS, has standing to challenge the trial court's denial of temporary custody to the 

grandmother, Carla York.) 

{¶39} Carla York filed a grandparent power of attorney with the juvenile division 

of common pleas court pursuant to R.C. 3109.52, which provides, 

{¶40} “The parent, guardian, or custodian of a child may create a power of 

attorney that grants to a grandparent of the child with whom the child is residing any of 

the parent's, guardian's, or custodian's rights and responsibilities regarding the care, 

physical custody, and control of the child, including the ability to enroll the child in 

school, to obtain from the school district educational and behavioral information about 

the child, to consent to all school-related matters regarding the child, and to consent to 

medical, psychological, or dental treatment for the child. The power of attorney may not 

grant authority to consent to the marriage or adoption of the child. The power of attorney 
Tuscarawas County, Case No. 2011AP04 0018 12 

does not affect the rights of the parent, guardian, or custodian of the child in any future 

proceeding concerning custody of the child or the allocation of parental rights and 

responsibilities for the care of the child and does not grant legal custody to the attorney 

in fact.” (Emphasis added). 

{¶41} Accordingly, this power of attorney did not grant Carla York legal custody 

of S.Y. Nor did the power of attorney constitute a request for custody. In this respect we 

note that R.C. 3109.77 expressly authorizes a trial court to treat a subsequent request 

for a grandparent power of attorney as a petition for legal custody. In re B.R, Cuyahoga 

App. No. 94099, 2010-Ohio-3092. That statute provides in relevant part: 

{¶42} ““(A) On the filing of a power of attorney or caretaker authorization affidavit 

under section 3109.76 of the Revised Code5, the court in which the power of attorney or 

caretaker authorization affidavit was filed shall schedule a hearing to determine whether 

the power of attorney or affidavit is in the child's best interest.* * * 

{¶43} “ * * * 

{¶44} “(C) At the conclusion of the hearing, the court may take any of the 

following actions that the court determines is in the child's best interest: 

{¶45} “(1) Approve the power of attorney or affidavit. If approved, the power of 

attorney or affidavit shall remain in effect unless otherwise terminated under section 

3109.59 of the Revised Code with respect to a power of attorney or section 3109.70 of 

the Revised Code with respect to an affidavit. 

{¶46} “(2) Issue an order terminating the power of attorney or affidavit and 

ordering the child returned to the child's parent, guardian, or custodian. If the parent, 

guardian, or custodian of the child cannot be located, the court shall treat the filing of 

 5

 R.C. 3109.76 governs “second or subsequent power of attorney” created under R.C. 3109.52 
Tuscarawas County, Case No. 2011AP04 0018 13 

the power of attorney or affidavit with the court as a complaint under section 2151.27 of 

the Revised Code that the child is a dependent child. 

{¶47} “(3) Treat the filing of the power of attorney or affidavit as a petition for 

legal custody and award legal custody of the child to the grandparent designated as the 

attorney in fact under the power of attorney or to the grandparent who executed the 

affidavit.” (Emphasis added.) 

{¶48} The express language of R.C. 3109.77(C)(3) therefore allows the court to 

treat a second power of attorney as a petition for legal custody. In re B.R. supra at ¶26. 

However, because that express language is not contained in R.C. 3109.52 an initial 

grandparent power of attorney cannot be treated by the trial court as a petition for legal 

custody. 

{¶49} “Appeal lies only on behalf of a party aggrieved by the final order 

appealed from. Appeals are not allowed for the purpose of settling abstract questions, 

but only to correct errors injuriously affecting the appellant.” Ohio Contract Carriers 

Assn. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, 

syllabus; Ohio Domestic Violence Network v. Pub. Util. Comm. (1992), 65 Ohio St.3d 

438, 439, 605 N.E.2d 13, 14. An appealing party may complain of an error committed 

against a non-appealing party when the error is prejudicial to the rights of the appellant. 

In re Smith (1991), 77 Ohio App.3d 1, 13, 601 N.E.2d 45, 52. In In re Rackley (Apr. 8, 

1998), Summit App. No. 18614, the court stated “an appellant may not challenge an 

alleged error committed against a non-appealing party absent a showing that she 

herself has been prejudiced by the alleged error.” See, also, State v. Ward (Sept. 21, 
Tuscarawas County, Case No. 2011AP04 0018 14 

1988), Summit App. No. 13462, unreported; In re Matis (May 24, 1995), Summit App. 

No. 16961. In re Leo D. supra. 

{¶50} In the case of In re Pittman, Summit App. No. 20894, 2002-Ohio-2208, at 

¶ 70, the Ninth District Court of Appeals explained that: 

{¶51} “ * * * [A] parent has standing to challenge the juvenile court's failure to 

grant a motion for legal custody of a child to a relative, where the court's denial of that 

motion led to a grant of permanent custody to the children services agency and 

impacted the residual rights of the parent. [Citations omitted.] However, the parent is 

limited to challenging only how the court's decision impacted the parent's rights and not 

the rights of the relative. A parent has no standing to assert that the court abused its 

discretion by failing to give * * * [a family member] legal custody; rather, the challenge is 

limited to whether the court's decision to terminate parental rights was proper.” 

{¶52} We note that neither of the parents has appealed the trial court’s 

adjudication or disposition of S.Y. Additionally, the maternal grandmother did not file a 

motion for custody of S.Y. We further note that from the record before this court we are 

unable to determine whether the maternal grandmother, Carla York, was even present 

during the dispositional hearings that took place in the trial court on February 1, 20116

and February 23, 2011.7

{¶53} In the case art bar, the trial court awarded temporary custody of S.Y. to 

TCJFS. TCJFS has made no showing that the trial court’s decision adversely impacted 

TCJFS rights or that they were prejudiced by the trial court’s award of temporary 

custody to them and the denial of temporary custody to the maternal grandmother. 

 6

 See, T. at 1-3. 

7

 See, T. at 18-19. 
Tuscarawas County, Case No. 2011AP04 0018 15 

{¶54} Therefore under the facts and circumstances of this case we find that 

TCJFS does not have standing to assert on appeal that the trial court erred in not 

granting temporary custody of S.Y. to his maternal grandmother Carla York with 

protective supervision to TCJFS. 

{¶55} For the foregoing reasons, appellant’s appeal is dismissed. 

By Gwin, P.J., 

Hoffman, J., and 

Wise, J., concur 

 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. JOHN W. WISE 

WSG:clw 0823 

 
[Cite as In re S.Y., 2011-Ohio-4621.]

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: 

S.Y., C.F., AND A.F. : 

 : 

 : 

 : 

 : 

 : JUDGMENT ENTRY 

 : 

 : 

 : 

 : CASE NO. 2011AP04 0018 

 For the reasons stated in our accompanying Memorandum-Opinion, this appeal is 

dismissed . Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. JOHN W. WISE