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In re Guardianship of S.H.

Court of Appeals of Ohio, Ninth District

August 27, 2013

IN RE: GUARDIANSHIP OF S.H.

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

For- Applicant-Appellant Maria Schimer CLAIR E. DICKINSON NICHOLAS P. CAPOTOSTO NICOLE SWEARINGEN-HILKER Guardian Ad Litem JENNIFER MATYAC.

For - Proposed Ward SHORAIN L. MCGHEE.

For – Andy and Anna H. JOHN C. OBERHOLTZER.

Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Sitting by Supreme Court Assignment.

OPINION

GWIN, P.J.

(¶1} Appellant Maria Schimer ["Schimer] appeals the July 31, 2013 decision of the Medina County Probate Court denying her application for appointment of a limited guardian of the proposed ward, S.h.[1]., a minor child, for the limited purposes of making medical decisions. The appellees are Andy H. and Anna H. ["Parents"], the parents of the minor child.

Facts and Procedural History

(¶2} On July 9, 2013, Schimer filed an application in the Medina County Probate Court for appointment as guardian of the proposed ward, S.H., for the limited purpose of making medical decisions. Specifically, Schimer filed 1). A Motion for Appointment of an Emergency Guardian with a Supplement and a Statement of Expert Evaluation pursuant to Supp.R. 66 and R.C. 2111.29; 2). Application for Appointment of Guardian of Minor, pursuant to R.C. 2111.03(C) with an Addendum, Probate Form 16 and Next of Kin of Proposed Ward, a Minor pursuant to R.C. 2111.04, Probate Form 15.0(A); Schimer's Affidavit pursuant to R.C. 3109.27, Probate Form 16.1; and Fiduciary's Acceptance Guardian, pursuant to R.C. 2111.14, Probate Form 15.2.

(¶3} On July 10, 2013, a magistrate appointed a guardian ad litem for S.H. On July 11, the parents' attorney filed a motion to continue the emergency hearing for guardianship or convert that hearing to a pre-trial conference. Parents also filed a motion to have counsel appointed to represent them. Finally, also on July 11, 2013, the parents filed a motion to appoint an investigator to investigate the need for, or the circumstances of the guardianship and file a report to the court pursuant to R.C. 2111.042.

(¶4} By Magistrate's Order filed July 11, 2013, the magistrate denied the parents' motion to continue the emergency hearing for guardianship. The magistrate found that the parents were duly notified of the hearing and "to delay a ruling to prevent significant injury to the minor, if ultimately found, is not in minors [sic] best interest." The magistrates further found no authority to appoint counsel for the parents because the motions filed do not seek to permanently divest the parents of their parental rights and are civil in nature; therefore, the parents were not entitled to counsel at state's expense. Further, there is no statutory authority for the appointment of counsel for parents in a guardianship proceeding. The magistrate granted the parents' motions to appoint an Investigator and to appoint an attorney to represent S.H.

(¶5} Following an evidentiary hearing before the magistrate on the application held July 12, 2013, the magistrate directed that S.H. be examined by Akron's Children's Hospital. The magistrate further ordered the guardian ad litem "shall consult with Dr. Bodas and provide a recommendation to the Court regarding continuation and/or resumption or [sic] chemotherapy for [S.H.]".

(¶6} On July 16, 2013, parents filed a motion to dismiss contending the case more properly belonged in the Juvenile Division of the Common Pleas Court pursuant to R.C. 2151. et seq. Parents also filed a motion to appoint Dr. Richard R. Mason, MS DO as an expert to assist the Court in alternative therapies available to S.H.

(¶7} On July 17, 2013, the parents filed a motion to dismiss contending R.C. 2111.02, the statute authorizing an emergency guardianship is unconstitutional "due to its language referring to 'an interested party being void for vagueness."

(¶8} On July 18, 2013, Schimer filed responses to each of the parents' motions. By Magistrate's Order filed July 19, 2013, the magistrate granted the parents motion to appoint Dr. Mason as an expert witness. The court continued the hearing on the application for appointment of a guardian until July 26, 2013. By separate entry filed July 19, 2013, the magistrate overruled the parents' motion to dismiss for lack of jurisdiction. By Judgment Entry, filed July 24, 2013 the trial judge overruled the parents' motion to dismiss for lack of jurisdiction and motion to dismiss based upon the void for vagueness doctrine.[2]

(¶9} A full evidentiary hearing on the application was held before the trial court on July 26, 2013. The parties filed post-hearing briefs on July 29, 2013.

(¶10} The following facts were presented during the hearings before the trial court.[3]

(¶11} S.H. and her family are Amish. Her parents make their living raising and selling produce at a stand in front of their house. S.H. has seven brothers and sisters ranging in age from 12 years to 8 months. S.H. is the third oldest child. She just completed the fourth grade at an Amish ...


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