June 29, 2016

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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.

Andrew Davis About Andrew Davis

Andrew Davis covered Medina city government for The Gazette from January 2014 to May 2015. Contact The Gazette's news department at (330) 721-4065 or areanews@medina-gazette.com.