June 27, 2016

Mostly cloudy

Amish girl medical case: Lawyer files motion to let guardian resign

The parents of an 11-year-old Amish girl battling cancer have asked a state appellate court to allow the resignation of a guardian appointed to overrule their decision to stop chemotherapy for their daughter.

Maurice A. Thompson, the attorney representing Andy and Anna Hershberger, of Homer Township, filed the motion Monday in the Ninth District Court of Appeals in Akron.

In a 25-page brief, Thompson argued the appointment of the guardian violated the constitutional rights of the parents to determine what is best for their daughter.

“Second-guessing and overruling the health care decisions of suitable, caring, attentive, and non-neglectful parents creates constitutional difficulties” that the courts failed to adequately consider, Thompson wrote.

Thompson, who is the executive director of the 1851 Center for Constitutional Law, a libertarian nonprofit organization headquartered in Columbus, acknowledged that several Ohio statutes give courts the power to appoint guardians in “best interest of the child.”

But, he argued, the court also must consider “the fundamental constitutional safeguards provided to suitable, non-neglectful parents by the Fourteenth Amendment to the U.S. Constitution and Sections 1 and 21 of the Ohio Constitution.

“… these careful and gut-wrenching life and death decisions cannot be second-guessed where the parents are suitable, and simply seek to try a less invasive treatment first.”

The Ninth District Court ordered Medina County Probate Judge Kevin W. Dunn to name a guardian in October, after ruling in favor of Akron Children’s Hospital, which argued the girl will die within a year without chemotherapy.

The Hershbergers had taken their daughter, Sarah, to Akron Children’s Hospital in April, where she was diagnosed with T-cell lymphoblasic lymphoma, an aggressive form of leukemia. But the family said it stopped the chemotherapy because of the severity of the side effects.

In the motion, Thompson wrote that the doctors understated the risks of chemotherapy, of which possible side effects include fatigue and nausea, uncontrolled bleeding, infections, an increased risk of developing cardiovascular disease and damage to other organs.

Thompson stated the parents “became concerned that the chemotherapy was actually killing her.”

The family has not been seen by authorities since the guardian was appointed.

David Augenstein, who publishes the online Journal of Natural Food and Health, told The Gazette last month the family fled the country to seek alternative treatment shortly before the appellate court’s ruling, but has since returned to the U.S. to an undisclosed location.

The family has claimed that Sarah’s cancer is in remission as a result of natural medicines, such as herbs and vitamins.

The guardian, Maria Schimer, an attorney who is also a registered nurse, had attempted to resign earlier this month, saying she has no way to contact the girl.

Judge Dunn wrote in a Dec. 16 journal entry he is not sure he can accept the resignation because the case is being appealed.

It is not clear when the Ninth District Court will rule on the parents’ motion.

Clair Dickinson, the attorney for the guardian, has not yet filed his response.

Thompson told The Associated Press earlier this month that the family wants to return to their Spencer Road farm but “won’t be coming home until the guardianship is no longer in effect.”

Contact David Knox at (330) 721-4065 or dknox@medina-gazette.com.