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
SUMMARY

An examination of Ohio's limited guardianship (Ohio Revised Code 211.06) and a notable interpretation of it by the Supreme Court of Ohio in order to offer a pragmatic approach for courts and legislators tasked with balancing Ohio's interest in promoting child welfare and protecting fit parents' rights to choose how best to care for their children.

 
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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
workersespecially those in Coshocton Countywho 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. DEPT 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. DEPT OF HEALTH & HUMAN SERVS., sup ra note 3, at 79.
6 See OHIO DEPT OF JO B & FAMI LY SERV S., OHIO COM PREHENSIVE ASSESSMENT AND
PLANNING MODEL INTERIM SOLUTIONS (CAPMIS), WORKER MANUAL AND FIELD
GUIDELINES, 13744 (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. 13CA0066M, 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. 13CA0057M, 2013-Ohio-3708, at
¶¶ 3841, 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 ¶¶ 3840.
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
CHILDRENS 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.

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