April 21, 2014

Medina
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Attorney for Amish family: Too late to argue rights violated

MEDINA — The attorney for the medical guardian responsible for the treatment of an 11-year-old Amish girl battling cancer said it was too late in the appeals process for the family to argue that the appointment of limited guardianship violated their constitutional rights.

The attorney, Clair E. Dickerson, said they should have brought up that issue when the case was heard in Medina County’s Probate Court.

“Sarah Hershberger’s parents never raised a question regarding the constitutionality (of Ohio’s guardianship statutes) in the trial court or in either prior appeal to this Court,” Dickerson wrote in a response filed Tuesday with the 9th District Court of Appeals in Akron.

Dickerson’s response comes almost a month after the parents of the girl filed a request asking the court to allow the guardian, Maria Schimer, to resign from her duties.

The family’s attorney, Maurice A. 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, wrote Thompson, who is the executive director of the 1851 Center for Constitutional Law, a Libertarian nonprofit group.

The 9th 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.

Sarah was taken by her parents to Akron Children’s Hospital in April where she was diagnosed with T-cell lymphoblasic lymphoma, an aggressive form of leukemia.

In June, the family took her off chemotherapy, saying it was going to kill her and opted for a more holistic approach of herbs and vitamins.

The family says their daughter’s cancer is in remission due to the treatment.

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.

“At the same time the parents are asking this Court to reconsider its earlier decision, they are flouting that decision by hiding Sarah Hershberger, making it impossible for Ms. Schimer to monitor her condition and make appropriate decisions for her,” Dickerson wrote.

In a related action, another attorney for the family filed a motion Monday asking Dunn to accept the resignation of the guardian.

Contact reporter Andrew Davis at (330) 721-4050 or adavis@medina-gazette.com.

  • susie

    uuuuuuuuh HELLO ? TOO LATE ? TOO LATE for WHAT ? the parents CAN STILL SUE and when the child reaches 21,SHE CAN AS WELL.
    THEY FILE A NEW COMPLAINT.
    THEIR PARENTAL RIGHTS WERE VIOLATED and everything else APPLICABLE UNDER THE USC,
    on the federal level,WHEN SUING for VIOLATION OF CONSTITUTIONAL RIGHTS,the individual state’s STATUTE OF LIMITATIONS for personal injury is the rule unless the court decides to extend that limit due to specific excuses.
    as for the child,she CAN SUE and HOPEFULLY DOES ,the COURT APPOINTEE and sues this court appointee waaaaaaaaay above her personal LIABILITY INSURANCE.
    PEOPLE ARE WAKING UP AND FILING.
    Most likely the glorious CPS is directly involved etc etc.
    I HOPE someone INFORMS THESE PARENTS.

    AND BELIEVE IT OR NOT ? Prior to have massive INTERFERENCE on unsubstantiated declarations from a court appointee I ALSO THOUGHT AND BELIEVED THERE WAS NOTHING I COULD DO due to being LIED TO ON JUDICIAL IMMUNITY etc.
    no such thing WHEN YOUR CONSTITUTIONAL RIGHTS WERE VIOLATED so PEOPLE ? file along the lines of our Costitution and WIN.-
    search out the term -fight CPS