The Limit of Ohio's Limited Guardianship Statute: Rights of Parents in Medical Decision-Making

• Author: Matthew D. Sturtz
• Position: J.D. Candidate, Capital University Law School, May 2016; B.S., Psychology, The Ohio State University, 2009. Thank you, Elyse, for your encouragement and tireless support throughout this writing process and my law school experience. Thank you also to my mother, Jayna, and remaining family members. It is to families like my own, which work hard...
• Pages: 127-158

THE LIMIT OF OHIO’S LIMITED GUARDIANSHIP

STATUTE: RIGHTS OF PARENTS IN

MEDICAL DECISION-MAKING

MATTHEW D. STURTZ *

“Ethical people of good will disagree as to what is in the best interest

of a person . . . .”1

I. INTRODUCTION TO LIMITED GUARDIANSHIP IN OHIO

Parenting is no easy task. Each day, capable parents2 make difficult

decisions with their child’s best interests in mind.3 From the mundane,

such as what to pack in a school lunch, to the extremely difficult, such as

choosing the course of medical treatment for a child facing a debilitating

illness, society affords parents latitude to make these decisions as the

Copyright © 2016, Matthew D. Sturtz.

* J.D. Candidate, Capital University Law School, May 2016; B.S., Psychology, The

Ohio State University, 2009. Thank you, Elyse, for your encouragement and tireless

support throughout this writing process and my law school experience. Thank you also to

my mother, Jayna, and remaining family members. It is to families like my own, which

work hard to provide a loving, structured, and safe environment for their children to learn

and grow, that I dedicate this Comment. I would also l ike to recognize Ohio’s child welfare

workers—especially those in Coshocton County—who care deeply about their mission and

who work hard to ensure that children are protected and that, when possible, family

integrity is maintained. Lastly, this Comment was made possible through the diligent

editorial support of Leah Wolfe and the thoughtful guidance and expertise of Professor

Mark Strasser, to each of whom I extend my sincerest gr atitude.

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

¶ 47 (Moyer, C.J., concurring in part and dissenting in part).

2 This Comment interchangeably refers to “capable,” “fit,” and “suitable” parents,

meaning those parents who are not subject to a finding of parental neglect, abuse, or child

dependency made by a court under state law. See Parham v. J.R., 442 U.S. 584, 624 (1979)

(Stewart, J., concurring in the judgment) (“Some parents are simply unfit parents. But

[state law] clearly provides that an unfit parent can be stripped of his [or her] parental

authority under laws dealing with neglect and abuse of children.”).

3 See U.S. DEP’T OF HEALTH & HUMAN SERVS., CHILD PROTECTIVE SERVICES: A GUIDE

FOR CASEWORKERS 9 (2003), http://ncwwi.org/files/Prof_Development__Training/

CPS_Guide_for_Caseworkers.pdf.

128 CAPITAL UNIVERSITY LAW REVIEW [44:127

arbiters of their own child’s needs.4 This grant is not without its limits,

however, and states have established institutions to resolve just this issue.5

Nevertheless, for various and perhaps justifiable reasons, these institutions

might not intervene.6 What then? What alternative, if any, remains, and

under what circumstances is its use justified? In addition, what rights

remain with suitable, capable parents in this context? Questions easily

furnish; answers, however, are not so clear. Guardianship law has

provided a recent backdrop for these issues.7

An Ohio appellate court recently analyzed Ohio’s limited guardianship

statute in response to questions of parental discretion in the medical

decision-making context.8 As this Comment explains, the appellate court

proceeded on unsteady ground, interpreting an arguably murky statutory

scheme and insufficiently guiding precedent, to resolve a delicate

procedural and factual scenario.9 In the end, the court appointed a “limited

4 See Linda Jellum, Parents Know Best: Revising Our Approach to Parental Custody

Agreements, 65 OHIO ST. L.J. 615, 644 (2004).

5 See U.S. DEP’T OF HEALTH & HUMAN SERVS., sup ra note 3, at 7–9.

6 See OHIO DEP’T OF JO B & FAMI LY SERV S., OHIO COM PREHENSIVE ASSESSMENT AND

PLANNING MODEL – INTERIM SOLUTIONS (CAPMIS), WORKER MANUAL AND FIELD

GUIDELINES, 137–44 (2006) (providing examples in which Ohio public children services

agencies are trained to accept or deny medical neglect complaints). An Ohio children

services agency might “screen in” or accept complaints of alleged medical neglect, for

example, where a parent or guardian: (1) “[f]ail[s] to obtain or follow medical treatment

that has an impact on child’s life functioning,” (2) “[f]ail[s] to provide or unreasonable

delay[s] seeking medical care for a condition that could cause permanent disability if not

treated,” or (3) “[f]ail[s] to provide emergency medical care for a potential life threatening

condition, illness or injury.” Id. at 142. Conversely, such agencies might “screen out” or

not accept complaints of alleged medical neglect where: (1) the parent’s or guardian’s

“[r]efusal and/or failure of medical treatment does not impact the child’s health and

safety[,] . . . includ[ing] decisions based on religious beliefs; (2) a “[c]hild has [a] terminal

illness/disease and [the] parents choose not to utilize and/or continue extraordinary medical

treatment based on moral/religious beliefs”; or (3) a “[p]arent chooses not to immunize [a]

child.” Id. This is a non-exhaustive list similar to the general guidelines provided by the

Worker Manual. Id.

7 See In re S.H. (S.H. II), 9th Dist. Medina No. 13CA0066–M, 2013-Ohio-4380, appeal

not allowed sub nom, In re Guardianship of S.H., 138 Ohio St. 3d 1417, 2014-Ohio-566, 3

N.E.3d 1217, reconsideration denied, 138 Ohio St. 3d 1472, 2014-Ohio-1674, 6 N.E.3d

1207.

8 Id.

9 Compare In re S.H. (S.H. I), 9th Dist. Medina No. 13CA0057–M, 2013-Ohio-3708, at

¶¶ 38–41, with S.H. II, 2013-Ohio-4380, at ¶ 21.

2016] OHIO’S LIMITED GUARDIANSHIP STATUTE 129

guardian” equipped with curtailed legal authority to make medical

decisions for the child, rather than preserve that authority for her otherwise

fit parents.10 As one might imagine, this case and the court’s decision

garnered significant attention.11

This Comment examines that case but focuses on the larger

incongruence of Ohio’s limited guardianship statute, and the case law

construing it, to begin to provide a way forward in these delicate areas.12

10 S.H. II, 2013-Ohio-4380, at ¶¶ 38–40.

11 See, e.g., Kantele Franko, Associated Press, Ohio Amish Argue Against Guardian in

Medina County Chemo Case, AKRON BEACON J. (Dec. 26, 2013),

http://www.ohio.com/news/break-news/ohio-amish-argue-against-guardian-in-medina-

county-chemo-case-1.455171; John Seewer, Sarah Hershberger’s Amish Family: Forced

Chemo Order Violates Rights, HUFFINGTON POST (Jan. 22, 2014), http://www.huffington

post.com/2014/01/22/amish-chemo_n_4643363.html; Tracy Oppenheimer, Amish vs. the

Courts: Family Speaks Out on Fleeing the U.S. to Save Daughter from Court-Mandated

Chemo, REASON.COM (Mar. 11, 2014), http://reason.com/reasontv/2014/03/11/amish-

family-defends-medical-decisions-f. Akron Children’s Hospital started a public webpage

devoted to Sarah’s case, complete with the hospital’s policy regarding limited

guardianships, an updated news feed surrounding the court case, medical information on

Sarah’s cancer, and a section for public comment. See Public Relations Staff, Akron

Children’s Addresses Questions About Court Case Involving Amish Girl, AKRON

CHILDREN’S HOSP., http://inside.akronchildrens.org/2013/08/28/akron-childrens-addresses-

questions-about-court-case-involving-amish-girl/#comments (last updated Aug. 28, 2013)

[hereinafter Akron Children’s Addresses Questions]. So much attention was given to the

case that the presiding Medina County Probate Court judge expressed concern that such

coverage could “utterly destroy[]” Sarah’s “personal and medical privacy” and “[t]he entire

family’s right to a quiet, dignified life.” See also In re Sarah Hershberger, Medina P.C.

2013 07 GM 00029, at 3 (Sept. 3, 2013) (in which the judge expressed concern over “[a]

Hospital spokesman . . . appearing on television and disclosing facts about Sarah’s

condition and . . . prognosis. . . . [and the] webpage giving details about Sarah’s cancer and

answering the public’s ‘frequently asked questions’ about her case.” (citing Akron

Children’s Addresses Questions, supra)).

12 See infra Part V. Although this Comment focuses on the use of limited guardianship

in the context of medical decision-making, a recent study chartered by the Supreme Court

of Ohio, which was designed to study issues surrounding Ohio’s laws on kinship care (i.e.,

using inter-familial child placements in lieu of foster care), reached this same conclusion

when examining Ohio’s limited guardianship statute. See SUP. CT. OF OHIO ADVISORY

COMM. ON CHILDR EN, FAMILIES & THE CTS. SUBCOMM. ON RESPONDING TO CHILD ABUSE,

NEGLECT & DEP ENDENCY, THE OHIO KINSH IP CARE PROJECT, 1–3

(2013), http://law.capital.edu/uploadedFiles/Law_School/NCALP/Kinship%20Report%20F

INAL.pdf [hereinafter THE OHIO KINSHIP CARE PROJECT]. The results of this study both

inform and illumine this Comment.