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.
For - Proposed Ward SHORAIN L. MCGHEE.
Guardian Ad Litem JENNIFER MATYA
For – Parents of Proposed Ward JOHN C. OBERHOLTZER.
Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J., Sitting by Supreme Court Assignment
(¶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 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."
(¶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.
(¶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.
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. 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 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 ...