[Cite as In re Guardianship of S.H., 2013-Ohio-4380.]


                                      COURT OF APPEALS
                                     MEDINA COUNTY, OHIO
                                   NINTH APPELLATE DISTRICT

                                                                JUDGES:
IN RE: GUARDIANSHIP OF                                  :       Hon. W. Scott Gwin, P.J.
S.H.                                                    :       Hon. William B. Hoffman, J.
                                                        :       Hon. Sheila G. Farmer , J.
                                                        :       Sitting by Supreme Court Assignment
                                                        :
                                                        :       Case No. 13CA0066-M
                                                        :
                                                        :
                                                        :       OPINION




CHARACTER OF PROCEEDING:                                    Appeal from the Medina County Court of
                                                            Common Pleas, Probate Division, Case No.
                                                            2013 07 GM 00029

JUDGMENT:                                                   Reversed and Remanded


DATE OF JUDGMENT ENTRY:                                     October 1, 2013


APPEARANCES:

For- Applicant-Appellant Maria Schimer                      For - Proposed Ward

CLAIR E. DICKINSON                                          SHORAIN L. MCGHEE
NICHOLAS P. CAPOTOSTO                                       4141 Rockside Road, Ste. 230
NICOLE SWEARINGEN-HILKER                                    Seven Hills, OH 44131
388 South Main Street, Ste. 500
Akron, OH 44311

Guardian Ad Litem                                           For – Parents of Proposed Ward

JENNIFER MATYAC                                             JOHN C. OBERHOLTZER
326 N. Court Street                                         39 Public Square, Ste. 201
Medina, OH 44256                                            Medina, OH 44256
[Cite as In re Guardianship of S.H., 2013-Ohio-4380.]


        {¶1}      In In re Guardianship of S.H., 9th Dist. Medina No. 13CA0057-M, 2013-

Ohio-3708 [“S.H.1”], this Court remanded this case to the probate court to determine

whether it would be in S.H.'s best interests to appointment a guardian for purposes of
                                                        1
making medical decisions on her behalf.                     Upon remand the Medina County Court of

Common Pleas, Probate Division found that it was not in the best interests of S.H. to

appoint Schimer as guardian of S.H. for purposes of making medical decisions on

S.H.’s behalf.

        {¶2}      Schimer raises one assignment of error,

        {¶3}      “I. THE TRIAL COURT INCORRECTLY DENIED MARIA SCHIMER’S

MOTION FOR IMMEDIATE APPOINTMENT OF A LIMITED GUARDIAN.”

                                                             I.

        {¶4}      The probate judge based his conclusion upon, among other concerns, on

three main areas: (1). The Medina County Jobs and Family Services refused to file a

Complaint alleging Dependency, Abuse or Neglect and seeking temporary custody of

S.H. pursuant to R.C. 2151.27; (2). The length and intensity of the chemotherapy

regime was too invasive and destructive of the family unit; and (3). The proposed

guardian has never met S.H. and does not intend to transport, accompany or personally

support S.H. as she is undergoing the treatments.

        {¶5}      For the reasons that follow, we find the decision of the probate court is not

based upon competent, credible evidence. We further find that the probate court did

abuse its discretion in finding that it was not in the best interests of S.H. to appoint

Schimer as guardian of S.H. for purposes of making medical decisions on S.H.’s behalf.



        1
            For a complete statement of the underlying facts, see S.H. 1.
Medina County, Case No. 13CA0066-M                                                          3

                                            PREFACE

       {¶6}   A parent’s decision to subject his or her child to potentially life-threatening,

painful or debilitating medical procedures that could either prolong the child’s life or, in

contrast, prolong the process of dying is a difficult and personal decision. The decision

“must be made on the basis of individual values, informed by medical realities, yet

within a framework governed by the law. The role of the courts is confined to

determining the framework, delineating the ways in which the government may and may

not participate in such decisions.” Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261,

303, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (Brennan, dissenting). [Hereinafter

“Cruzan”].

                                    STANDARD OF REVIEW

       {¶7}   R.C. 2111.02(A) provides that “[w]hen found necessary, the probate court

on its own motion or on application by any interested party shall appoint * * * a guardian

of the person, the estate, or both, of a minor or incompetent[.]” Regarding the

appointment of a guardian, the probate court is required to act in the best interest of the

ward. In re Estate of Bednarczuk, 80 Ohio App.3d 548, 551, 609 N.E. 2d 1310 (12th

Dist. 1992); R.C. 2111.50(C). The probate court’s ruling regarding the appointment of a

guardian will not be reversed absent an abuse of discretion if it is supported by

competent, credible evidence. In re Guardianship of Miller, 187 Ohio App.3d 445, 2010–

Ohio–2159, 932 N.E.2d 420 (3rd Dist.). Accord, In re Guardianship of Waller, 192 Ohio

App.3d 663, 2011-Ohio-313, 950 N.E.2d 1207(1st Dist.), ¶16; In re Guardianship of

Anderson, 2nd Dist. Montgomery No. 25367, 2013-Ohio-2012, ¶15; In re Guardianship

of Borland, 5th Dist. Stark No. 2002CA00410, 2003-Ohio-6870, ¶8.
Medina County, Case No. 13CA0066-M                                                       4

                                   ABUSE OF DISCRETION

      {¶8}   The term "abuse of discretion" has been applied in a somewhat rote

manner by the courts without analysis of the true purpose of the appellate court's role in

the review of a trial court's discretionary powers. State v. Firouzmandi, 5th Dist. Licking

App. No.2006-CA-41, 2006-Ohio-5823, ¶ 54.

      {¶9}   As was noted in Firouzmandi, an excellent analysis of the misconception

surrounding the concept of "abuse of discretion" was set forth by the Arizona Supreme

Court sitting en banc:

             The phrase “within the discretion of the trial court” is often used but

      the reason for that phrase being applied to certain issues is seldom

      examined. One of the primary reasons an issue is considered

      discretionary is that its resolution is based on factors which vary from case

      to case and which involve the balance of conflicting facts and equitable

      considerations. Walsh v. Centeio, 692 F.2d 1239, 1242 (9th Cir.1982).

      Thus, the phrase “within the discretion of the trial court” does not mean

      that the court is free to reach any conclusion it wishes. It does mean that

      where there are opposing equitable or factual considerations, we will not

      substitute our judgment for that of the trial court.

State v. Chapple, 135 Ariz. 281, 296-97, 660 P.2d 1208, 1223-24(1983), superseded by

statute as stated in State v. Benson _P.3d_2013 WL 3929153(Ariz. July 31, 2013). The

Court further explained,

             The term “abuse of discretion” is unfortunate. In ordinary language,

      “abuse” implies some form of corrupt practice, deceit or impropriety.
Medina County, Case No. 13CA0066-M                                                    5


     Webster's Third New International Dictionary (1976). In this sense, the

     application of the word to the act of a trial judge who ruled in accordance

     with all the decided cases on the issue is inappropriate. However, in the

     legal context, the word “abuse” in the phrase “abuse of discretion” has

     been given a broader meaning. In the few cases that have attempted an

     analysis, the ordinary meaning of the word has been considered

     inappropriate and the phrase as a whole has been interpreted to apply

     where the reasons given by the court for its action are clearly untenable,

     legally incorrect, or amount to a denial of justice. State ex rel. Fletcher v.

     District Court of Jefferson County, 213 Iowa 822, 831, 238 N.W. 290, 294

     (1931). Similarly, a discretionary act which reaches an end or purpose not

     justified by, and clearly against, reason and evidence “is an abuse.”

     Kinnear v. Dennis, 97 Okl. 206, 207, 223 P. 383, 384 (1924).

            The law would be better served if we were to apply a different term,

     but since most appellate judges suffer from misocainea, we will no doubt

     continue to use the phrase “abuse of discretion.” Therefore, we should

     keep some operative principles in mind. Something is discretionary

     because it is based on an assessment of conflicting procedural, factual or

     equitable considerations which vary from case to case and which can be

     better determined or resolved by the trial judge, who has a more

     immediate grasp of all the facts of the case, an opportunity to see the

     parties, lawyers and witnesses, and who can better assess the impact of

     what occurs before him. Walsh v. Centeio, supra. Where a decision is
Medina County, Case No. 13CA0066-M                                                     6


      made on that basis, it is truly discretionary and we will not substitute our

      judgment for that of the trial judge; we will not second-guess. Where,

      however, the facts or inferences from them are not in dispute and where

      there are few or no conflicting procedural, factual or equitable

      considerations, the resolution of the question is one of law or logic. Then it

      is our final responsibility to determine law and policy and it becomes our

      duty to “look over the shoulder” of the trial judge and, if appropriate,

      substitute our judgment for his or hers. This process is sometimes,

      unfortunately, described as a determination that the trial judge has

      “abused his discretion ..."

Chapple, 660 P.2d at 1224 n. 18 (citations omitted). Accord, State v. Garza, 192 Ariz.

171, 175-76, 962 P.2d 898, 902(1998); Firouzmandi, ¶54-55; State v. Saunders, 5th

Dist. Licking App. No.2006-CA-00058, 2007-Ohio-1080 at ¶ 27-28.

                 RIGHT TO REFUSE UNWANTED MEDICAL TREATMENT

      {¶10} The common law doctrine of “informed consent” has been viewed as

generally encompassing the right of a competent adult to refuse medical treatment.

Cruzan, 497 U.S. at 277, 110 S.Ct. 2841, 111 L.Ed.2d 224. “The right to be free from

unwanted medical attention is a right to evaluate the potential benefit of treatment and

its possible consequences according to one’s own values and to make a personal

decision whether to subject oneself to the intrusion.” Cruzan, 497 U.S. 261, 309, 110

S.Ct. 2841, 111 L.Ed.2d 224 (Brennan, dissenting). In Cruzan, the Court found the right

of a competent adult to refuse unwanted medical treatment to be a constitutionally

protected liberty interest under the due process clause of the Fourteenth Amendment.
Medina County, Case No. 13CA0066-M                                                      7


This constitutionally protected right to refuse unwanted medical treatment has been

recognized in Ohio,

             The Supreme Court of Ohio recognizes an Ohioan’s fundamental

      right to refuse medical treatment on the basis that “personal security,

      bodily integrity, and autonomy are cherished liberties.” Steele [v. Hamilton

      Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 736 N.E.2d 10,

      2000-Ohio-47] at 180, 736 N.E.2d 10. “These liberties were not created by

      statute or case law. Rather, they are rights inherent in every individual.” Id.

      at 180-81, 736 N.E.2d 10 (citing Section 1, Article I, Ohio Constitution).

      The court has further held that “[e]very human being of adult years and

      sound mind has a right to determine what shall be done with his own

      body.” Id. at 181, 736 N.E.2d 10 (quoting Schloendorff v. Soc. of N.Y.

      Hosp. (1914), 211 N.Y. 125, 105 N.E. 92, 93).

Licking & Knox Community Mental Health & Recovery Bd. v. T.B., 10th Dist. Franklin

No. 10AP–454, 2010–Ohio–3487, ¶19. A competent person may refuse medical

treatment regardless of the fact that there may be severe consequences involved for

refusing treatment. Cruzan, 497 U.S. 261, 306, 110 S.Ct. 2841, 111 L.Ed.2d 224

(Brennan, dissenting). That the state may disagree with a competent individual’s

decision to forego medical treatment is of no consequence, “[t]he regulation of

constitutionally protected decisions...must be predicated on legitimate state concerns

other than disagreement with the choice the individual has made...Otherwise the

interest in liberty would be a nullity....”(emphasis sic.) Cruzan, 497 U.S. 261, 313-314,
Medina County, Case No. 13CA0066-M                                                         8

110 S.Ct. 2841, 111 L.Ed.2d 224 (Brennan, dissenting) (quoting Hodgson v. Minnesota,

497 U.S. 417, 435, 110 S.Ct. 2926, 111 L.Ed.2d 344(1990)).

       {¶11} Children are entitled to the protection of the Constitution and possess

certain constitutional rights. Bellotti v. Baird, 443 U.S. 622, 633-634, 99 S.Ct. 3035, 61

L.Ed.2d 797(1979); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527(1967).

However, the constitutional rights of minors cannot be equated with those of adults.

Three reasons have emerged for the difference in treatment, (1). The peculiar

vulnerability of children; (2). Their inability to make critical decisions in an informed,

mature manner, and (3). The importance of the parental role in child rearing. Bellotti,

443 U.S. at 634, 99 S.Ct. 3035, 61 L.Ed.2d 797.

       {¶12} To be sure, the constitutional rights of children are generally exercised by

his or her parent. “The common law historically has given recognition to the right of

parents, not merely to be notified of their children's actions, but to speak and act on their

behalf.” Hodgson v. Minnesota, 497 U.S. 417, 483, 110 S.Ct. 2926, 111 L.Ed.2d

344(1990) (Kennedy, J. concurring in part, dissenting in part).

        PARENTS’ RIGHT TO MAKE MEDICAL DECISIONS FOR HIS OR HER CHILD

       {¶13} Since Meyer v. Nebraska, 262 U.S. 390, 399, 401–03, 43 S.Ct. 625, 67

L.Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental

liberty interest of parents in the custody, care and control of their children.

       {¶14} In his dissenting opinion, Justice Katz of the Supreme Court of

Connecticut traced the line of Supreme Court cases, beginning with Meyer, in which this

fundamental liberty interest is recognized,
Medina County, Case No. 13CA0066-M                                                     9


            The Supreme Court’s decisions recognizing this fundamental right

     date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399,

     401–03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that “proficiency

     in foreign language ... is not injurious to the health, morals or

     understanding of the ordinary child” and recognizing right of parents to

     “establish a home and bring up children” and to “control the education of

     their own”); Pierce v. Society of Sisters, 268 U.S. 510, 534–35, 45 S.Ct.

     571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with

     parents’ decision to send children to private schools when decision was

     “not inherently harmful” and recognizing right “to direct the upbringing and

     education of children under their control”); Wisconsin v. Yoder, 406 U.S.

     205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from

     state compulsory education law requiring children to attend public school

     until age eighteen, recognizing that “primary role of the parents in the

     upbringing of their children is now established beyond debate as an

     enduring American tradition”); see also Prince v. Massachusetts, 321 U.S.

     158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (“[i]t is cardinal with us that

     the custody, care and nurture of the child reside first in the parents, whose

     primary function and freedom include preparation for obligations the state

     can neither supply nor hinder”); Stanley v. Illinois, 405 U.S. 645, 651, 92

     S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“[i]t is plain that the interest of a parent

     in the companionship, care, custody, and management of his or her

     children ‘come[s] to this [c]ourt with a momentum for respect lacking when
Medina County, Case No. 13CA0066-M                                                      10


      appeal is made to liberties which derive merely from shifting economic

      arrangements’ ”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54

      L.Ed.2d 511 (1978) (“[w]e have recognized on numerous occasions that

      the relationship between parent and child is constitutionally protected”);

      Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed. 2d 101 (1979)

      (“Our jurisprudence historically has reflected Western civilization concepts

      of the family as a unit with broad parental authority over minor children.

      Our cases have consistently followed that course”); Santosky v. Kramer,

      455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing

      “[t]he fundamental liberty interest of natural parents in the care, custody,

      and management of their child”); Washington v. Clucksberg, 521 U.S. 702,

      720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (“[i]n a long line of cases, we

      have held that, in addition to the specific freedoms protected by the [b]ill of

      [r]ights, the ‘liberty’ specially protected by the [d]ue [p]rocess [c]lause

      includes the righ [t] ... to direct the education and upbringing of one’s

      children” [citations omitted] ).

Fish v. Fish, 285 Conn. 24, 93 n.3, 939 A.2d 1040(2008 (Katz, J., dissenting).

      {¶15} There can be no doubt that a parent is required to exercise his or her

maturity, expertise and judgment to make medical decisions on behalf of the child,

             [A parents duty includes] a “high duty” to recognize symptoms of

      illness and to seek and follow medical advice. The law’s concept of the

      family rests on a presumption that parents possess what a child lacks in

      maturity, experience, and capacity for judgment required for making life’s
Medina County, Case No. 13CA0066-M                                                       11


       difficult decisions. More important, historically it has recognized that

       natural bonds of affection lead parents to act in the best interests of their

       children. 1 W. Blackstone, Commentaries * 447; 2 J. Kent, Commentaries

       on American Law * 190.

                                            ***

              Simply because the decision of a parent is not agreeable to a child

       or because it involves risks does not automatically transfer the power to

       make that decision from the parents to some agency or officer of the state.

       The    same    characterizations    can    be   made   for   a   tonsillectomy,

       appendectomy, or other medical procedure. Most children, even in

       adolescence, simply are not able to make sound judgments concerning

       many decisions, including their need for medical care or treatment.

       Parents can and must make those judgments.

Parham v. J.R., 442 U.S. 584, 602-603, 99 S.Ct. 2493, 61 L.Ed.2d 101(1979).

              The welfare of the child has always been the central concern of

       laws with regard to minors. The law does not give to children many rights

       given to adults, and provides, in general, that children can exercise the

       rights they do have only through and with parental consent. Parham v.

       J.R., 442 U.S. 584, 621, 99 S.Ct. 2493, 2513, 61 L.Ed.2d 101 (1979)

       (STEWART, J., concurring in judgment).

Hodgson v. Minnesota, 497 U.S. at 482, 110 S.Ct. 2926, 111 L.Ed.2d 344(Scalia,

concurring in part, dissenting in part).
Medina County, Case No. 13CA0066-M                                                                      12


        {¶16} In the case at bar, both parents and S.H. assert the right to refuse

chemotherapy. However, R.C. 2111.50(F) gives the probate court full parens patriae

powers,2 “When considering any question related, and issuing orders for, medical or

surgical care or treatment of incompetents or minors subject to guardianship, the

probate court has full parens patriae powers unless otherwise provided by a section of

the Revised Code.” In re Stein, 105 Ohio St.3d 30, 2004-Ohio-7114, 821 N.E.2d 1008,

¶85 (O’Conner, J. dissenting); Accord, In re Guardianship of Constable, 12th Dist.

Clermont No. CA97-11-101, 1998 WL 142381(March 30, 1998); In re Guardianship of

Myers, 62 Ohio Misc. 2d 763, 610 N.E.2d 663(C.P. 1993). Further, R.C. 2111.50(C)

mandates the best interest test be applied in all medical decisions for a ward. Myers, 62

Ohio Misc. at 774, 610 N.E.2d 663.

                                  THE BEST INTEREST OF THE CHILD

        {¶17} In the case at bar, Dr. Prasad Bodas testified that S.H.'s chemotherapy

treatment has five separate phases: Induction (five weeks), Consolidation (seven

weeks), and Interim maintenance (eight weeks), Delayed Intensification (six weeks) and

Maintenance (ninety weeks). The total duration of the therapy is two years, three

months.

        {¶18} Dr. Bodes further testified there are short-term and long-term effects and

appreciable risks from being treated with chemotherapy. The short-term effects include

S.H.'s hair falling out, she will suffer fatigue and nausea and she will be at risk for

uncontrolled bleeding and developing infections. The long-term concerns are that she


        2
          “Parens patriae” means “parent of his or her country,” and refers to “the state in its capacity as
provider of protection to those unable to care for themselves,” such as children. Black's Law Dictionary
1144 (8th ed. 2004). For a brief history of this doctrine see, Fawzy v. Fawzy, 199 N.J. 456, 973 A.2d 347,
359, n. 3(N.J. 2009
Medina County, Case No. 13CA0066-M                                                      13


will become infertile, and she will have a higher risk of developing cardiovascular

disease. In addition, the treatment itself may damage her other organs and there is an

increased risk of contracting other cancers. S.H. has a small but appreciable risk of

dying from the treatment itself. Based upon the record before this Court, it cannot be

said that the concerns of S.H. and her parents are entirely unfounded.

       {¶19} R.C. 2111.02 and 2111.06 vest the probate court with broad power,

              Upon a mere finding that it is in the “best interest of a * * * minor,”

       R.C. 2111.02(B) (1) authorizes a probate court to supplant a parent's

       rights and responsibilities through appointment of a limited guardian.

       Similarly, R.C. 2111.06 authorizes a probate court to appoint a guardian of

       a minor not only where the court finds the child's natural parents to be

       “unsuitable persons” but also upon the mere finding that the child's

       “interests * * * will be promoted thereby.”

In re Guardianship of Stein, 105 Ohio St.3d 30, 2004-Ohio-7114, 821 N.E.2d 1008, ¶57.

(Moyer, C.J. concurring in part, dissenting in part). However, R.C. 2111.08 recognizes a

suitable parent’s superior right to the guardianship of his or her children against the

rights of a nonparent third party,

              The wife and husband are the joint natural guardians of their minor

       children and are equally charged with their care, nurture, welfare, and

       education and the care and management of their estates. The wife and

       husband have equal powers, rights, and duties and neither parent has any

       right paramount to the right of the other concerning the parental rights and

       responsibilities for the care of the minor or the right to be the residential
Medina County, Case No. 13CA0066-M                                                    14


      parent and legal custodian of the minor, the control of the services or the

      earnings of such minor, or any other matter affecting the minor; provided

      that if either parent, to the exclusion of the other, is maintaining and

      supporting the child, that parent shall have the paramount right to control

      the services and earnings of the child. Neither parent shall forcibly take a

      child from the guardianship of the parent who is the residential parent and

      legal custodian of the child.

      {¶20} The Supreme Court of Ohio has recognized the superior guardianship

rights and obligations of a child’s parents over those of a nonparent,

             The major statement by this court on the custody rights of a parent

      and a nonparent was made in Clark v. Bayer (1877), 32 Ohio St. 299, a

      century ago. In that opinion, Judge Ashburn acknowledges for the court, at

      page 310, that “in all cases of controverted right to custody, the welfare of

      the minor is first to be considered,” but he also determined that parents

      who are “suitable” persons have a “paramount” right to the custody of their

      minor children unless they forfeit that right by contract, abandonment, or

      by becoming totally unable to care for and support those children.

Perales v. Nino, 52 Ohio St. 89. 97, 369 N.E.2d 1047(1977). Although Perales

concerned a custody petition under R.C. 2115.23(A)(2), the holding has been extended

to guardianship proceedings. In re Guardianship of Wright, 3rd Dist. Defiance No. 4-01-

20, 2002-Ohio-404, citing In re Jewell, 4th Dist. Athens No. 1190, 1984 WL 5681(Dec.

6, 1984).
Medina County, Case No. 13CA0066-M                                                                15


       {¶21} Accordingly, although R.C. 2111.02 does not explicitly require a finding of

“parental unsuitability” it remains a factor for the court to consider.3 If the probate court

finds that a parent is unsuitable, it clearly would not be in the “best interest” of the minor

child to allow the parent to make medical decisions on behalf of the child. However, a

finding of parental “suitability” does not end a probate court’s inquiry. Parental rights,

even if based upon firm belief and honest convictions can be limited in order to protect

the “best interests” of the child. “[W]here parental involvement threatens to harm the

child, the parents authority must yield.” Hodgson v. Minnesota, 497 U.S. 417, 471, 110

S.Ct. 2926, 111 L.Ed.2d 344(1990) (Marshall, J. concurring, in part, dissenting, in part)

(citing Prince v. Massachusetts, 321 U.S. at 169-170; H.L. v. Masterson, 450 U.S. at

449(Marshall, J. dissenting)).

       {¶22} It is beyond dispute that the state may regulate certain areas that touch

upon areas of traditional family concern,

               Acting to guard the general interest in youth's well being, the state

       as parens patriae may restrict the parent's control by requiring school

       attendance, regulating or prohibiting the child's labor, and in many other

       ways. Its authority is not nullified merely because the parent grounds his

       claim to control the child's course of conduct on religion or conscience.

       (Footnotes omitted).

Prince v. Massachusetts, 321 U.S. at 166, 64 S.Ct. 438, 88 L.Ed. 645. When the state

seeks to regulate parental decision making against the wishes of the parents, the

competing interests “must be determined by balancing [the] liberty interests [of the


       3
          We modify our previous statement that the best interest of the child be determined “without
regard to the suitability of the parents,” accordingly. S.H. 1, ¶42.
Medina County, Case No. 13CA0066-M                                                       16

parents and child] against the relevant state interest.” Cruzan v. v. Director, Mo. Dept. of

Health, 497 U.S. at 279, 110 S.Ct. 2841, 111 L.Ed.2d 224(quoting Youngberg v.

Romeo, 457 U.S. 307, 321, 102 S.Ct. 2452, 2461, 73 L.Ed.2d 28(1982)).

       {¶23} In Prince v. Massachusetts, the United States Supreme Court recognized

the importance of children to the future of our nation is a legitimate state concern that

may override parents’ wishes,

              A democratic society rests, for its continuance, upon the healthy,

       well-rounded growth of young people into full maturity as citizens, with all

       that implies. It may secure this against impeding restraints and dangers,

       within a broad range of selection. Among evils most appropriate for such

       action are the crippling effects of child employment, more especially in

       public places, and the possible harms arising from other activities subject

       to all the diverse influences of the street. It is too late now to doubt that

       legislation appropriately designed to reach such evils is within the state's

       police power, whether against the parents claim to control of the child or

       one that religious scruples dictate contrary action. (Footnotes omitted).

321 U.S. at 168, 169, 64 S.Ct. 438, 88 L.Ed.2d 645. Indeed,

              [O]ur courts have overridden the desires of parents who refused to

       consent to medical treatment and ordered such treatment to save a child's

       life. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61

       L.Ed.2d 101, 119 (1979) (“Nonetheless, we have recognized that a state is

       not without constitutional control over parental discretion in dealing with

       children when their physical or mental health is jeopardized.” (Citations
Medina County, Case No. 13CA0066-M                                                 17

     omitted)); Prince, supra, 321 U.S. at 166–67, 64 S.Ct. at 442, 88 L.Ed. at

     652–53 (noting that state, as parens patriae, can intrude on parental

     autonomy to protect child from ill health or death); Jehovah's Witnesses v.

     King County Hosp. Unit No. 1, 278 F.Supp. 488, 498–99, 504–05

     (W.D.Wash.1967) (holding Washington State statute that declared

     children to be dependents of state for purpose of authorizing blood

     transfusions against expressed wishes of parents was constitutional),

     aff'd, 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968) (per curiam);

     State v. Perricone, 37 N.J. 463, 474, 181 A. 2d 751 (finding state may act

     under its parens patriae authority to protect child's welfare by declaring

     him or her neglected to obtain necessary medical treatment), cert. denied,

     371 U.S. 890, 83 S.Ct. 189, 9 L.Ed.2d 124 (1962); Muhlenberg Hosp. v.

     Patterson, 128 N.J.Super. 498, 503, 320 A.2d 518 (Law Div.1974)

     (ordering blood transfusion to infant over parents' wishes). [Fawzy v.

     Fawzy, 199 N.J. 456, 474, 973 A.2d 347 (2009) (quoting Moriarty, supra,

     177 N.J. at 102–03, 827 A.2d 203); see also Hojnowski v. Vans Skate

     Park, 187 N.J. 323, 901 A.2d 381 (2006) (invoking parens patriae doctrine

     to invalidate exculpatory waiver executed by parent on behalf of minor

     child).]

                “Indeed, the state has an obligation, under the parens patriae

     doctrine, to intervene where it is necessary to prevent harm to a child.”

     Fawzy, supra, 199 N.J. at 474–75, 973 A.2d 347 (footnote omitted)

     (citations omitted).
Medina County, Case No. 13CA0066-M                                                       18

In re D.C. and D.C., 203 N.J. 545, 569 4 A.3d 1004 1018(NJ 2010).

       {¶24} The courts of Ohio recognize the state obligation to intervene to protect its

children,

              The state's authority over children's activities must, as we have

       already noted, be broader than it is over like activities of adults if those of

       tender years are to be protected against some clear and present danger.

       Adults are ordinarily free to make choices denied to those of less than full

       age, but when those choices threaten the welfare of a child, the state must

       intervene.

In re Willmann, 24 Ohio App.3d 191, 199, 493 N.E.2d 1380(1st Dist. 1986),

       {¶25} Thus, we find that it is well established in Ohio and in other jurisdictions,

that, when parents cannot or will not consent to potentially life-saving treatment for a

minor, then a court may appoint another to approve the procedure and thereby protect

the child's life and health.

       {¶26} In the case at bar, we note that Schimer has made the application for

guardianship,

              Because I believe that [S.H.] needs someone to speak for her and

       to assist her to have the best chance for survival and to live a long and full

       and happy life.

1T., July 26, 2012 at 76.

       {¶27} Schimer’s qualifications include her background as a R.N. Schimer is also

an Assistant Attorney General for the State of Ohio; a former associate and assist dean

of the College of Medicine; and a teacher at Kent State University. Schimer has been
Medina County, Case No. 13CA0066-M                                                    19


appointed as Guardian in the past, most notable in the 1990’s. During that time,

Schimer was appointed to assist the Courts in the withdrawal of life-sustaining treatment

from older adults who had no Durable Power of Attorney for Health Care decisions and

who were unable to speak for his or her self and had no one to speak for them. (1T.,

July 26, 2012 at 31-32). She was then asked by the Courts to review the cases of

several medically compromised, developmentally disabled adolescents, who were

unable to speak for themselves and had no family members to speak for them. (Id. at

32-33). Schimer currently has wards in the courts of Summit, Portage and Medina

counties. (Id. at 33).

       {¶28} Upon being granted access to S.H.’s records and doctors, Schimer

consulted with Dr. Bodas, S.H.’s primary oncologist. Dr. Bodas described the prognosis

and treatment of S.H. giving her a 85 - 90% survival rate if she receives treatment in

accordance with the National Cancer Institute protocol. (Id. at 36 -37).

       {¶29} Schimer also met with Dr. Jeffrey Hord, Director of Hematology-Oncology

at Akron’s Children’s Hospital. (1T., July 26, 2012 at 42). Dr. Hoard is also a member of

the hospital’s Tumor Board, a group of approximately 45 professionals, including

physicians, surgeons, nurses, social workers, palliative care personnel who review each

and every case of cancer that comes through Akron Children’s Hospital for treatment.

(Id. at 42).

       {¶30} Schimer also met with Dr. Sara Friebert, Palliative Care Director at Akron

Children’s Hospital. (1T., July 26, 2012 at 43). Palliative care is “a form of medical

therapy that provides pain and symptom control for patients who are undergoing any

form of care who might be at the end of life.” (Id.).
Medina County, Case No. 13CA0066-M                                                          20


       {¶31} Finally, Schimer reviewed S.H.’s financial situation and assured the court

that S.H. and her family owe nothing and will owe nothing for her medical treatment

because it is paid for through government programs. (1T., July 26, 2012 at 44-45).

       {¶32} Schimer expressed a desire to meet with and work with S.H. and her

parents,

              I do believe they’re reasonable people. I think people at the hospital

       are used to dealing with these kind of issues and would assist us in

       working out a mechanism that would be acceptable to the parents.

                                              ***

              And my approach to life is not to hit people head-on. It’s to try to

       work with families, to come to a good place with them so that we can

       begin to develop some trust so that they can begin to collaborate and

       approach this in a way that isn’t frightening for [S.H.], isn’t hostile for [S.H.]

(1T., July 26, 2012 at 60; 74).

       {¶33} Schimer also testified that the nausea S.H. experienced was ameliorated

while S.H. was in the hospital, but things broke down when she went home,

              No. Because she had already had symptoms and waited too long to

       call, and suffered for a period of time before she was treated.

(1T., July 26, 2012 at 85). Further, the cancer itself can cause symptoms of fatigue and

incapacitation. (Id. at 87).

       {¶34} The probate court’s own investigator Nicki Shook spoke with [A.L.] the

individual who was providing natural health alternative treatment to S.H. She indicated

that she is under a “fellowship program with Dr. [P.L.T.]” whose products are offered on
Medina County, Case No. 13CA0066-M                                                      21


his web site. Some of the products are FDA approved. All contain warnings and

disclaimers. When the Investigator attempted to speak with the doctor, the receptionist

stated that [A.L.] “was only a customer of ours.” In relationship to the long-term effects

regarding S.H.’s health, [A.L.] stated “we just don’t know the outcome.”

       {¶35} The Investigator found S.H. is not in remission and her disease will remain

active. S.H. will die without treatment.

       {¶36} Both the Investigator and S.H.’s Guardian ad litem suggest the family

obtain a second opinion if that will allay the families concerns. Both indicate that no one

has presented any evidence, studies or statistics that support a finding that the natural

alternative treatment is as effective as chemotherapy. Both the Investigator and the

Guardian support continuing S.H.’s treatment.

       {¶37} In the case at bar, the medical evidence presented is that the proposed

treatment will give S.H. a chance to grow and to thrive. While we respect the wishes of

the parents and believe them to be honest and sincere, we are unwilling to adhere to

the wishes of the parents under the facts of this case. Both the child’s Guardian ad litem

and the probate court’s own Investigator found it to be in the best interest of S.H. to

undergo treatment aimed at saving and preserving her life. The trial court in this case

has disregarded those individuals choosing instead to base its decision, at least in part,

on matters that are not contained in the trial court record. Further, the trial court’s

decision is wrought with speculation. The parties have never raised whether R.C.

2116.06 is constitutional as applied.
Medina County, Case No. 13CA0066-M                                                      22


                                     CONCLUSION

         {¶38} A parent who has demonstrated sufficient commitment to his or her child

is entitled to raise the child free from undue interference from third parties. Cf. Hodgson

v. Minnesota, 497 U.S. at 447, 110 S.Ct. 2926, 111 L.Ed.2d 344. While we have no

doubt that, the parents are acting in accordance with their principles, beliefs and honest

convictions and that their goal may be a laudable one, it does not nullify or supersede

the right of the state and the probate court to protect the health and well-being of a

child.

         {¶39} We find the decision of the Medina County Court of Common Pleas,

Probate Division is not based upon competent credible evidence and is therefore an

abuse of discretion.
Medina County, Case No. 13CA0066-M                                                     23


      {¶40} The judgment of the Court of Common Pleas, Probate Division, Medina

County, Ohio, is reversed. Section 3(B) (2), Article IV of the Ohio Constitution gives an

appellate court the power to affirm, reverse, or modify the judgment of an inferior court.

Accordingly, we order the Medina County Probate Court to appoint Schimer as guardian

of S.H. for purposes of making medical decisions on S.H.’s behalf without further delay

and remand this case to the plenary authority of the Medina County Probate Court for

proceedings in accordance with our opinion and the law.

Gwin, P.J.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur




                                             _________________________________
                                             HON. W. SCOTT GWIN


                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN


                                             _________________________________
                                             HON. SHEILA G. FARMER


                                             Sitting by Supreme Court Assignment



WSG:clw 0930
[Cite as In re Guardianship of S.H., 2013-Ohio-4380.]


               IN THE COURT OF APPEALS FOR MEDINA COUNTY, OHIO

                                   NINTH APPELLATE DISTRICT


IN RE: GUARDIANSHIP OF
S. H.                                                   :
                                                        :
                                                        :
                                                        :
                                                        :
                                                        :        JUDGMENT ENTRY
                                                        :
                                                        :
                                                        :
                                                        :        CASE NO. 13CA0066-M

        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas, Probate Division, Medina County, Ohio, is

reversed. Pursuant to Section 3(B) (2), Article IV of the Ohio Constitution we order the

Medina County Probate Court to appoint Schimer as guardian of S.H. for purposes of

making medical decisions on S.H.’s behalf without further delay and remand this case to

the plenary authority of the Medina County Probate Court for proceedings in

accordance with our opinion and the law.

        It is ordered that a facsimile copy of this Opinion shall serve as the original.



                                                            _________________________________
                                                            HON. W. SCOTT GWIN

                                                            _________________________________
                                                            HON. WILLIAM B. HOFFMAN

                                                            _________________________________
                                                            HON. SHEILA G. FARMER

                                                            Sitting by Supreme Court Assignment
