Created on Thursday, 09 January 2014 Written by JOHN SEEWER, Associated Press
TOLEDO, Ohio (AP) — A lawyer assigned to make medical decisions for an 11-year-old Amish girl who later went into hiding to avoid resuming chemotherapy told a court that it shouldn't overturn a decision appointing her as guardian even though she wants off the case.
The guardian wants to stop trying to force Sarah Hershberger to undergo chemotherapy for her leukemia because the girl and her parents fled their farm in northeastern Ohio and went into hiding three months ago.
But she also said in a filing this week that an Ohio appeals court should not grant the Hershberger family's request to reverse the ruling that made her the girl's guardian.
The family decided this past summer to halt the cancer treatments because they feared the chemotherapy could end up killing the girl. Doctors at Akron Children's Hospital believe Sarah's leukemia is treatable, but they said in August that she will die within a year without chemotherapy.
The guardian, Maria Schimer, an attorney who's also a registered nurse, was given the power to make medical decisions for Sarah after an appeals court ruling in October said the beliefs and convictions of the girl's parents can't outweigh the rights of the state to protect the child.
Schimer and her attorney said in court documents opposing the request to reverse the decision that the Hershbergers are flouting the court's original order by hiding their daughter.
She also said the Hershbergers' attempts to argue that their constitutional rights were violated should not be allowed because they didn't raise that issue in the trial court. "The parents have forfeited the arguments they now wish to make," Schimer and her attorney said.
The lawyer for Sarah's family said in an earlier court filing with the Ninth District Court of Appeals in Akron that Ohio's guardianship statutes appear to let courts substitute their judgment for that of suitable parents while ignoring the parents' "moral and constitutional interests."
The court should take a narrower view that limits such second-guessing and is consistent with constitutional safeguards of their rights, said Maurice Thompson, who leads the libertarian 1851 Center for Constitutional Law in Ohio.
The Hershbergers shun many facets of modern life and are deeply religious. They have said they stopped chemotherapy not for religious reasons but because it was making Sarah too sick. Instead, they decided to use natural medicines, such as herbs and vitamins.
Schimer has asked a Medina County court to let her drop her attempt to force Sarah to resume chemotherapy because it became impossible to make medical decisions for Sarah after the family fled.
If approved, Schimer's resignation could end the family's monthslong fight against the hospital and lead to their return. The family lives on a farm and operates a produce stand near the village of Spencer, about 35 miles southwest of Cleveland.
Medina County Probate Judge Kevin Dunn has delayed a decision on the resignation request. He said he first wants to make sure he has authority to grant it in light of the ongoing appeal in state court.
In filings with the county court, lawyers for the family and the guardian have argued that Dunn has authority to immediately accept the guardian's resignation and that doing so wouldn't affect jurisdiction in the family's appeal.
Clair Dickinson, the guardian's attorney, argued that even if the resignation is accepted, the court legally would remain the girl's "superior guardian" and could appoint a replacement.
However, Dickinson said earlier that an attorney told him the hospital won't continue its legal push to get chemotherapy for Sarah if Schimer's resignation is approved.
Associated Press writer Kantele Franko in Columbus contributed to this report.