October 24, 2014

Medina
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Hospital wins appeal in Amish girl guardianship case

Akron’s Children Hospital is getting a second chance to gain partial guardianship of a 10-year-old Amish girl with cancer whose parents stopped chemotherapy.

The 5th District Court of Appeals on Tuesday overturned Medina County Juvenile and Probate Judge John J. Lohn’s ruling from July in favor of the girl’s parents. The 5th District heard the case because the 9th District judges recused themselves.

Lohn has since retired. His successor, Judge Kevin W. Dunn, will hear the case.

Limited guardianship would grant hospital attorney and registered nurse Maria Schimer the authority to make medical decisions for the girl, Sarah Hershberger, instead of her parents, Andy and Anna Hershberger, of Homer Township.

Lohn had ruled the hospital failed to show the girl’s parents were irresponsible.

“The court cannot deprive these parents of their right to make medical decisions for their daughter because there is not a scintilla of evidence showing the parents are unfit,” Lohn wrote. “There was no basis in law and no basis in fact to file this action.”

In rejecting the ruling, the appellate court stated that Lohn “failed to even consider” that a person filing for limited guardianship simply needs to prove they’re acting in the child’s best interest.

“There is no requirement the trial court find the parents to be unfit or unsuitable before appointing a guardian on this ground,” the appeals judges wrote.

The judges also said they were glad the court and attorneys worked quickly on the appeal. Most appeals take more than six months to resolve, but this one took less than a month.

The case began when Sarah was taken to the hospital with tumors on a kidney and visible ones on her neck and chest, according to court records.

The parents at first accepted chemotherapy, but later chose natural medicine, including herbs and vitamins.

Physicians have said Sarah will die in a year or less if she does not get treatment.

“Our goal is to ensure that this child, like all children in our care, receives the most appropriate care, based on scientific evidence,” a hospital spokeswoman said Wednesday. “Chemotherapy presents children with lymphoblastic lymphoma with their best — and essentially only — hope for survival.”

The spokeswoman stressed the hospital is not claiming the Hershbergers are unfit parents, noting the hospital isn’t seeking physical or legal custody of the girl.

“This involves a disagreement between providers and parents over what course of treatment is best for their child,” the spokeswoman said.

John Oberholtzer, the attorney for the Hershbergers, said his clients disagree with the hospital that their daughter will die without chemotherapy.

“They look at this as a religious thing,” Oberholtzer said, “and they believe this kind of thing is in the hands of God.”

In Amish culture, anything harmful to the body is shunned. He said his clients weren’t properly warned how chemotherapy would affect their daughter, so he said the negative side-effects took them by surprise.

They’d rather leave the matter to God, he said, than put their daughter through more of the “brutal treatment.”

He said the idea that a hospital could take rights away from parents is disturbing to him.

“That goes way beyond the Amish community,” he said. “Everyone’s got to look at that long and hard.”

Contact reporter Nick Glunt at (330) 721-4048 or nglunt@medina-gazette.com.