In re Guardianship of Stein

[Cite as In re Guardianship of Stein, 105 Ohio St.3d 30, 2004-Ohio-7114.]

IN RE GUARDIANSHIP OF STEIN.
[Cite as In re Guardianship of Stein, 105 Ohio St.3d 30, 2004-Ohio-7114.]
Probate courts – Guardianships – Parental rights – Probate court cannot
empower guardian to withdraw life support from infant in persistent
vegetative state without first properly terminating parental rights – Cause
remanded to probate court to remove guardian’s authority to withdraw
life support.
(No. 2004-0928 — Submitted October 26, 2004 — Decided December 30, 2004.)
APPEAL from the Court of Appeals for Summit County, No. 22092, 157 Ohio
App.3d 417, 2004-Ohio-2948, 811 N.E.2d 594.
__________________
LUNDBERG STRATTON, J.
{¶ 1} Today this court must consider the narrow legal issue of whether
the Summit County Probate Court exceeded its statutory authority when it
appointed a guardian with the power to authorize the withdrawal of all life-
sustaining support and treatment for Aiden Stein, an infant. Although the unique
facts of this case are tragic and raise many issues, this case does not require us to
decide whether either of Aiden Stein’s parents abused him or whether Aiden’s
father, appellant Matthew Stein, is guilty of any criminal charges. It does not
require us to decide whether it would be in Aiden’s best interest to have life-
supporting treatments withdrawn and comfort care administered or whether the
constitutional rights of his parents were violated. Rather, this case involves a
narrow legal issue of statutory authority.
{¶ 2} For the reasons that follow, we conclude that the probate court
exceeded its statutory authority, and we, therefore, remand the cause to the
Summit County Probate Court to amend the guardianship order to remove the
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portion of the order authorizing the guardian to withdraw life-supporting
treatment for Aiden.
History
{¶ 3} On March 15, 2004, five-month-old Aiden Stein was taken from
his home to MedCentral Hospital, Mansfield, in Richland County by emergency
transport. When Aiden arrived at MedCentral, he was in critical condition, not
moving, and unable to breathe on his own. He was placed on a mechanical
ventilator, resuscitated, and transferred to Akron Children’s Hospital Medical
Center of Akron in Summit County.
{¶ 4} Upon arrival at Children’s Hospital, Aiden was found to have
excessive amounts of blood on his brain. He was moved to the critical care unit,
where doctors attempted to drain some of the excess blood from his head. In the
emergency department, Aiden was diagnosed as having suffered a traumatic brain
injury.
{¶ 5} Dr. Richard D. Steiner, D.O., an attending physician in the
emergency department at Children’s Hospital, was called to evaluate Aiden soon
after his arrival. Dr. Steiner testified that because of the child’s age, there was a
suspicion by the emergency room physicians that Aiden may have suffered the
injury as a result of abuse.
{¶ 6} Aiden’s sole caretaker on the day he sustained these injuries was
his father, Matthew Stein (“Stein”). In addition, there was evidence of a possible
prior incident of abuse, regarding which neither parent could be ruled out as a
suspect. On March 16, 2004, appellee Richland County Children Services Board
(“RCCSB”) was granted emergency temporary custody of Aiden based upon the
above diagnosis and allegations that the injuries were inflicted by Stein, with
whom Aiden’s mother, appellant Arica Heimlich, was residing.
{¶ 7} Aiden’s prognosis, based on a reasonable degree of medical
certainty, is that he will have no awareness of or ability to interact with his

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environment other than reflexive actions. Three of four doctors who testified at
the hearing opined that, at best, Aiden’s outcome would be a permanent
unconscious state, also described as a persistent vegetative state.
{¶ 8} Due to Aiden’s diagnosis and prognosis, the Children’s Hospital
Ethics Committee was consulted regarding ethical issues involved in continuing,
limiting, or withdrawing life-supporting treatment for Aiden. The ethics
committee is a multidisciplinary group of people, including physicians, nurses,
therapists, community members, clergy, and legal counsel, and is not associated
with the hospital. Because Stein was under suspicion of causing Aiden’s injuries,
and because Heimlich remained allied with Stein after the alleged abuse, the
committee recommended that due to the significant potential for a conflict of
interest, a guardian should be appointed to help make medical decisions for
Aiden. In addition, the ethics committee recommended that life-supporting
treatment be withdrawn and comfort care be administered to Aiden.
{¶ 9} On April 6, 2004, at the request of Children’s Hospital, appellee
Ellen Kaforey applied to the Summit County Probate Court for appointment as
Aiden’s guardian “to evaluate and determine the withdrawal of life-sustaining
medical treatment currently being administered” to Aiden. Kaforey is an attorney
and a registered nurse who is often called upon by the probate court to assist
families in cases where medical decisions need to be made for a family member.
{¶ 10} The Summit County Probate Court held an evidentiary hearing on
Kaforey’s application on April 14, 16, 21, and 22, 2004. At the hearing,
testimony was taken from Aiden’s parents, Stein and Heimlich, Dr. John Pope,
Ellen Kaforey, Michelle Renee Flaherty (an investigator for RCCSB), Dr. Richard
Steiner, Janet Roberts (a licensed practical nurse), Leanne Sessler (sister of Arica
Heimlich), Dr. Max Wiznitzer, and Dr. Paul A. Byrne.
{¶ 11} Dr. John Pope, a pediatrician and critical care pediatric specialist at
Children’s Hospital, testified that Aiden’s condition was consistent with shaken

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baby syndrome. He testified that Aiden had “tremendous intracranial injuries
inside of his skull, blood around his brain, as well as significant evidence on [the]
CT of injury to the brain itself, and also had a significant amount of bleeding in
the back of his eyes or retinal hemorrhages. These injuries without a history of an
immediately preceding significant traumatic event are only consistent with shaken
baby syndrome.”
{¶ 12} Dr. Pope testified that Aiden “not only suffered from the bleeding
and the direct traumatic injury, but the brain, his upper brain, the cortex, the parts
of the brain that makes us who we are, suffered for some period of time [from]
inadequate oxygen and inadequate blood flow.”
{¶ 13} Further, Dr. Pope testified that Aiden’s most recent CAT scan at
that time, which was March 22, “showed that part of the brain to be essentially
completely black which is an indication that that part of the brain is dead.” A
subsequent x-ray showed that Aiden also had a fractured skull, which Dr. Pope
testified was consistent with a “discard injury,” occurring when a victim of
shaken baby syndrome is tossed aside after having been shaken. Dr. Pope
testified that Aiden was the victim of shaken infant syndrome and that he will
remain in a persistent vegetative state until he dies.
{¶ 14} Dr. Steiner, attending physician at Children’s Hospital Department
of Emergency Medicine, testified that Aiden was the victim of shaken infant
syndrome, and he concurred with Dr. Pope’s prognosis that Aiden will remain in
a persistent vegetative state until he dies.
{¶ 15} Dr. Max Wiznitzer, appointed by the court as an independent
medical reviewer, is on staff at Rainbow Babies and Children’s Hospital,
Department of Pediatrics, and at University Hospitals of Cleveland, Department
of Neurology. Dr. Wiznitzer testified that Aiden was the victim of shaken infant
syndrome and that he will remain in a persistent vegetative state until he dies.

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{¶ 16} Dr. Paul Byrne testified on behalf of Aiden’s parents. Dr. Byrne
testified that he had examined Aiden and reviewed the file and concluded that
Aiden’s injuries were not caused by shaken infant syndrome. Rather, Dr. Byrne
testified that Aiden had a preexisting condition and that an unspecified acute
event sent him into respiratory arrest. He testified that the withdrawal of life-
sustaining medical treatment was not appropriate. When asked whether there are
any circumstances where the withdrawal of life-sustaining medical treatment is
ethically appropriate, Dr. Byrne responded, “Let’s put it this way, I haven’t seen
that.”
{¶ 17} On the second day of the hearing, the parties reached an agreement
that the court could move forward to appoint Ellen Kaforey as the guardian of
Aiden Stein for limited purposes, defined to include making all medical decisions
with the exception of the withdrawal of life-sustaining treatments, for Aiden Stein
from that point forward until further order of the court.
{¶ 18} Following the hearing, on April 29, 2004, the probate court
appointed Ellen Kaforey as “limited guardian” of Aiden Stein, but, despite the
agreement, ordered that her powers include (1) giving consent to all medical
treatment, (2) withdrawing all life-sustaining support and treatment, (3)
requesting a do-not-resuscitate order, (4) directing the infant’s medical care
providers to cease all medical treatment that would prolong the life of the infant,
and (5) making recommendations regarding Aiden’s eventual disposition if he
requires posthospital care elsewhere.
{¶ 19} R.C. 2133.08 authorizes the removal of life-sustaining treatment
for terminally ill adults. However, the probate court concluded that R.C. 2133.08
“arguably” does not apply to minors, and, therefore, the court instead derived its
authority from R.C. 2111.06, a general statute that authorizes the probate court to
appoint a guardian to make medical and other decisions for a minor if the parents
are unsuitable.

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{¶ 20} The Summit County Court of Appeals affirmed the judgment of
the probate court on June 9, 2004. In re Guardianship of Stein, 157 Ohio App.3d
417, 2004-Ohio-2948, 811 N.E.2d 594. This court granted the appellant parents’
motion to stay execution of the court of appeals’ judgment on June 11, 2004. In
re Guardianship of Stein, 102 Ohio St.3d 1475, 2004-Ohio-2995, 810 N.E.2d 441.
{¶ 21} This cause is now before us upon our acceptance of a discretionary
appeal.
Jurisdiction
{¶ 22} R.C. 2101.24(A)(1) defines the jurisdiction of the probate court,
providing that:
{¶ 23} “Except as otherwise provided by law, the probate court has
exclusive jurisdiction:
{¶ 24} “ * * *
{¶ 25} “(e) To appoint and remove guardians * * *.”
{¶ 26} The probate court concluded that Aiden is a resident of Summit
County as required by R.C. 2111.02(A), a conclusion with which we agree. A
minor’s resident status is to be construed consistently with the best interest of the
minor. See In re Fore (1958), 168 Ohio St. 363, 369, 7 O.O.2d 127,155 N.E.2d
194. Further, “residence” refers to a place of dwelling within the state. Id. at 371,
7 O.O.2d 127, 155 N.E.2d 194. Since being admitted to Akron Children’s
Hospital on March 15, 2004, Aiden has been residing in Summit County on a 24-
hour, seven-day-per-week basis. Moreover, the parties do not appear to contest
the probate court’s finding of residency or of jurisdiction. We, therefore, hold
that Aiden is a resident of Summit County for purposes of this case under R.C.
2111.02(A), and the probate court had jurisdiction to consider these questions.
Guardianship
{¶ 27} “[A] parent’s desire for and right to ‘the companionship, care,
custody and management of his or her children’ is an important interest that

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‘undeniably warrants deference and, absent a powerful countervailing interest,
protection.’ ” Lassiter v. Dept. of Social Serv. (1981), 452 U.S. 18, 27, 101 S.Ct.
2153, 68 L.Ed.2d 640, quoting Stanley v. Illinois (1971), 405 U.S. 645, 651, 92
S.Ct. 1208, 31 L.Ed.2d 551.
{¶ 28} Ellen Kaforey filed for guardianship of Aiden Stein after the Ethics
Committee at Akron Children’s Hospital concluded that Aiden’s parents have a
conflict of interest regarding Aiden’s care due to the potential for enhanced
criminal charges if Aiden dies. R.C. 2111.06 provides that “[a] guardian of the
person of a minor shall be appointed as to a minor * * * whose parents are
unsuitable persons to have the custody and tuition of such minor.”
{¶ 29} The probate court granted that application and granted to Kaforey
the authority to withdraw life-supporting treatments for Aiden. Stein and
Heimlich contend that any decision to remove life-supporting treatment from
Aiden would have the effect of terminating their parental rights without due
process. The RCCSB and Guardian Kaforey argue that if life-supporting
treatments are withdrawn and Aiden dies, it would be the neurological injuries
Aiden sustained that would be the cause of death, not the act of withdrawing the
life-supporting treatments.
{¶ 30} R.C. 2133.08, part of Ohio’s version of the Uniform Rights of the
Terminally Ill Act, is the only Ohio statute that explicitly authorizes the removal
of life-sustaining treatment. The statute, by its very terms, however, applies only
to adults. R.C. 2133.08(A)(1). If a statute is unambiguous, we must apply it as
written. State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471,
¶ 13. See, also, State v. Hughes (1999), 86 Ohio St.3d 424, 427, 715 N.E.2d 540
("In construing a statute, we may not add or delete words"). If the General
Assembly wanted to apply R.C. 2133.08 to minors, it could have expressly done
so. Because it has not, we will not extend the statute’s application by judicial

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decree. Thus, the probate court correctly concluded that R.C. 2133.08 does not
permit the withdrawal of life-sustaining treatment for a minor.
{¶ 31} The probate court then turned to R.C. Chapter 2111, concerning
guardianships and conservatorships. Specifically, R.C. 2111.50(F) provides that
“[w]hen considering any question related to, and issuing orders for, medical or
surgical care or treatment of incompetents or minors subject to guardianship, the
probate court has full parens patria powers unless otherwise provided by a section
of the Revised Code.” Moreover, R.C. 2111.06 provides that “[a] guardian of the
person of a minor shall be appointed as to a minor * * * whose parents are
unsuitable persons to have the custody and tuition of such minor.”
{¶ 32} Aiden’s parents have been considered unsuitable due to the
conflict of interest that exists in this case, namely, if life-supporting treatments are
withdrawn, Aiden will die, and if Aiden dies, his father, who was the sole
caretaker on the day Aiden sustained his injuries, could be charged with murder,
as he is suspected of injuring the baby. Further, Aiden’s mother, Heimlich, who
resides with and has since become engaged to Stein, does not believe that Stein
caused Aiden’s injuries, and neither can be ruled out as having caused a possible
prior incident of abuse.
{¶ 33} In accordance with R.C. 2111.06, the probate court in this instance
concluded that it had the jurisdiction to appoint a guardian for the purpose of
making or recommending medical decisions for Aiden, including life-and-death
issues of removing life-sustaining treatments. We find, however, that the decision
to withdraw life-supporting treatments goes beyond the scope of making medical
decisions.
{¶ 34} The Richland County Juvenile Court placed Aiden in the
emergency temporary protective custody of the RCCSB on March 16, 2004. On
October 26, 2004, at the time this court heard this case on the merits, permanent

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custody of Aiden had not been determined, and he remained in the temporary
custody of the RCCSB.
{¶ 35} In this case, the parents’ rights have been merely suspended, not
terminated. We acknowledge the argument that the abuse would be the true
proximate cause of Aiden’s death should life-supporting treatments be withdrawn.
However, many scenarios are possible in this unique case, such as the possibility
that Heimlich could choose to leave Stein and seek sole custody of Aiden. If it
cannot be established that she participated in any of the possible instances of
abuse, there may not be grounds to deny her reunification with her son. The fact
that a child is in a permanent vegetative state is not a sufficient reason to deny
parental rights, absent evidence of abuse or neglect. The right to withdraw life-
supporting treatment for a child remains with the child’s parents until the parents’
rights are permanently terminated.
{¶ 36} “The fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because they
have not been model parents or have lost temporary custody of their child to the
State. Even when blood relationships are strained, parents retain a vital interest in
preventing the irretrievable destruction of their family life. If anything, persons
faced with forced dissolution of their parental rights have a more critical need for
procedural protections than do those resisting state intervention into ongoing
family affairs. When the State moves to destroy weakened familial bonds, it must
provide the parents with fundamentally fair procedures.” Santosky v. Kramer
(1982), 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599.
{¶ 37} We conclude that the probate court’s order authorizing the
guardian to withdraw life-supporting treatments has the effect of terminating
parental rights. We, therefore, hold that the probate court exceeded its statutory
authority in granting the guardian the power to withdraw life-supporting
treatments before the parents’ rights were permanently terminated. If the

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Richland County Juvenile Court permanently terminates the parental rights of
Stein and Heimlich, the guardian will then fully stand in the shoes of the parents.
Until then, the granting of authority to withdraw life-supporting treatment for
Aiden is premature.
{¶ 38} The heartbreak and tragedy in this case cannot be overstated.
However, we believe that without a full and proper adjudication of parental rights
concluding in a termination of those rights, a probate court has no authority to
allow a guardian to make a decision that will terminate the life of a child, when
parental rights have not been permanently terminated, thereby terminating the
parent-child relationship. Accordingly, because the parties have otherwise
stipulated to the order of the Summit County Probate Court, we remand the cause
to the Summit County Probate Court to amend the guardianship order to remove
the portion of the order authorizing the guardian to withdraw life-supporting
treatments for Aiden.
Judgment reversed
and cause remanded.
RESNICK and F.E. SWEENEY, JJ., concur.
O’DONNELL, J., concurs separately.
MOYER, C.J., concurs in part and dissents in part.
PFEIFER, J., concurs in part and dissents in part.
O’CONNOR, J., dissents.
__________________
O’DONNELL, J., concurring.
{¶ 39} The majority has correctly concluded that the judgment of the
court of appeals should be reversed; I write separately to emphasize the fact that
the Richland County Juvenile Court had exercised jurisdiction over Aiden Stein,
had not terminated parental rights, and in my view, never relinquished its
jurisdiction over the custody of the infant.

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{¶ 40} Against that factual background, after the infant was transported to
Akron Children’s Hospital in Summit County and at the request of the hospital,
Ellen Kaforey, an attorney and a nurse, applied to the probate court to serve as
guardian for the infant.
{¶ 41} The parties consented to her appointment, but not to her authority
to withdraw life support; despite the agreement, the Summit County Probate
Court granted her that authority.
{¶ 42} Two questions arise: one, which court should be acting on the
infant’s behalf, and two, does the statute authorize a probate court to terminate
life support of a minor? The answer to the first question is that the Richland
County Juvenile Court has jurisdiction over this child and the answer to the
second is that the legislature has not provided authority to a probate court to
exercise this jurisdiction. Decisions of this kind involving minors are properly
left to parents. Unless or until their rights as to their child are terminated, they are
the proper parties to make the decision with respect to their own child.
{¶ 43} I do not agree that a guardian is in a position to make decisions
regarding the termination of life support for Aiden if the Richland County
Juvenile Court does terminate parental rights. Juvenile courts of our state must
consider the best interest of the child in making custody decisions and must place
custody of the child with the party best suited to provide care. See, generally,
R.C. 2151.353 and 2151.414.
{¶ 44} The General Assembly recognized the role of parents and the duty
of courts to defer to the decisions of parents or those who exercise parental rights
and, in enacting R.C. 2133.08 regarding the rights of the terminally ill,
specifically chose to extend application only to adults, and not to minors.
{¶ 45} Therefore, in my view, the Summit County Probate Court abused
its discretion in authorizing the guardian to terminate life support for Aiden Stein.
Accordingly, I concur with the majority in its decision to order the Summit

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County Probate Court to amend its judgment deleting the authority to withdraw
life support, because that is not authorized by R.C. 2133.08, but I would also
remand the matter to the Richland County Juvenile Court for further proceedings
regarding the adjudication of parental rights.
__________________
MOYER, C.J., concurring in part and dissenting in part.
{¶ 46} We live in a technological age in which the dividing line between
life and death is sometimes a fine one. Aiden Stein “lives” because his heart is
beating and his body is capable of sustaining itself when provided nutrition,
water, and technological assistance. We are told that every area of his brain,
however, has been significantly damaged except for the “very deep center of the
brain stem which is the very primitive area of the brain.” The clear consensus of
medical opinion is that Aiden’s ability to relate to people and events around him
no longer exists—and will never return. He is described as being in a persistent
vegetative state with no chance for recovery. The trial court described Aiden’s
existence as “not life but a cruel shadow of life.”
{¶ 47} Ethical people of good will disagree as to what is in the best
interest of a person under such circumstances. I agree with the majority that the
ultimate inquiry before us is not whether life-supporting treatment should be
continued. Rather, the ultimate question we must resolve is whether Aiden’s
parents retain the legal right to make that decision, even though one parent is
suspected of (but not charged with) causing Aiden’s injuries and the other
believes in the father’s innocence. Or did the state, acting through the probate
court and in light of the accusations against one or both of Aiden’s parents,
validly vest a guardian with the limited authority to make the decision whether
life-supporting treatment should be continued? The issue is Solomonic.
{¶ 48} As does the majority, I acknowledge that the right of natural
parents to direct the care and upbringing of a child is a fundamental liberty

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interest of constitutional dimension. Troxel v. Granville (2000), 530 U.S. 57, 65,
120 S.Ct. 2054, 147 L.Ed.2d 49. However, that authority is not unlimited. The
state clearly has parens patriae power over minors in certain circumstances.
{¶ 49} Ohio courts do not, however, have inherent jurisdiction to
determine a child’s best interests, as they possess only the jurisdiction that the
General Assembly has expressly conferred upon them. See Section 4(B), Article
IV of the Ohio Constitution; Seventh Urban, Inc. v. Univ. Circle Property Dev.,
Inc. (1981), 67 Ohio St.2d 19, 22, 21 O.O.3d 12, 423 N.E.2d 1070. Thus the
question remains whether Ohio’s statutory scheme grants the trial court the
authority to terminate Aiden’s life support contrary to the will of his parents.
{¶ 50} The trial court proceeded under the authority of R.C. 2111.02 and
2111.06. R.C. 2111.02 states:
{¶ 51} “(A) When found necessary, the probate court * * * shall appoint *
* * a guardian of the person, the estate, or both, of a minor * * *.
{¶ 52} “ * * *
{¶ 53} “(B)(1) If the probate court finds it to be in the best interest of [a]
* * * minor, it may appoint * * * on its own motion or on application by an
interested party, a limited guardian with specific limited powers. * * * [T]he
order of appointment and letters of authority of a limited guardian shall state the
reasons for, and specify the limited powers of, the guardian. The court may
appoint a limited guardian for a definite or indefinite period. * * *
{¶ 54} “(C) Prior to the appointment of a * * * limited guardian under
division (A) or (B)(1) of this section, the court shall conduct a hearing on the
matter of the appointment.” (Emphasis added.)
{¶ 55} R.C. 2111.06 provides:
{¶ 56} “A guardian of the person of a minor shall be appointed as to a
minor having neither father nor mother, or whose parents are unsuitable persons
to have the custody and tuition of such minor, or whose interests, in the opinion of

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the court, will be promoted thereby. A guardian of the person shall have the
custody and provide for the maintenance of the ward, and if the ward is a minor
such guardian shall also provide for the education of such ward.” (Emphasis
added.)
{¶ 57} R.C. 2111.02 and 2111.06 vest the probate courts of Ohio with
broad power. Upon a mere finding that it is in the “best interest of a * * * minor,”
R.C. 2111.02(B)(1) authorizes a probate court to supplant a parent’s rights and
responsibilities through appointment of a limited guardian. Similarly, R.C.
2111.06 authorizes a probate court to appoint a guardian of a minor not only
where the court finds the child’s natural parents to be “unsuitable persons” but
also upon the mere finding that the child’s “interests * * * will be promoted
thereby.”
{¶ 58} These conclusory statutory criteria stand in stark contrast to the
comprehensive statutory scheme set forth in R.C. Chapter 2151 governing the
adjudication of children as dependent, neglected, or abused, and ultimately, the
permanent termination of a natural parent’s legal rights. Indeed, where parents
are believed to be unfit, R.C. Chapter 2151 is more commonly invoked to
accomplish transfer of responsibility for children from natural parents to the state
than is the probate code.
{¶ 59} Nevertheless, R.C. 2111.02 clearly authorizes a probate court to
appoint a limited guardian where the court finds it to be in the child’s best
interests to do so. Nothing in the text of the statute precludes the court from
authorizing a limited guardian to direct a child’s medical provider to terminate life
support.
{¶ 60} I do not accept the majority’s premise that a decision to withdraw
life-supporting treatments is something other than a medical decision. Nor do I
believe that a decision to withdraw life-supporting treatments is equivalent to the
termination of the parent-child relationship. That relationship is legal in nature,

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and while the death of either clearly changes it, the relationship survives death.
See, for example, the statute of descent and distribution, R.C. 2105.06(F),
providing that a surviving parent is entitled to inherit from the estate of a deceased
child not survived by a spouse or his or her own children.
{¶ 61} In short, I believe that the General Assembly has authorized
probate courts to enter orders like that made by the Probate Court of Summit
County.
{¶ 62} I believe that the question whether R.C. 2111.02 and 2111.06 were
constitutionally applied to Aiden’s parents is a separate, serious, and legitimate
one. The court of appeals refused to address it, observing that the parents first
raised constitutional objections “during their closing argument at the conclusion
of a four-day hearing, when it was clearly too late for the trial court to correct the
alleged error.”
{¶ 63} I disagree. It is true that counsel’s advocacy was less than artful
and that he did not specifically argue that application of the guardianship statutes
to Aiden’s parents would be unconstitutional. I cannot subscribe to the premise,
however, that constitutional issues were waived because not raised “at a time
when such error could have been avoided or corrected by the trial court.” State v.
Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three
of the syllabus.
{¶ 64} Counsel for Aiden’s parents stated at closing argument:
{¶ 65} “The issue in this case is not merely jurisdiction * * *. This
court’s primary jurisdiction over guardianship, your Honor, is a mere footnote to
the fundamental interest in life, liberty and property which is the core
constitutional issue in this case.
{¶ 66} “ * * *
{¶ 67} “This constitutional issue is — partakes of the First Amendment,
your Honor, the associative right of the parent, the Fifth Amendment in the

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depravation [sic] of a human life, and most particularly the Fourteenth
Amendment through the state’s participation through the person of this honorable
court in making this decision. And, your Honor, I do not question the jurisdiction
of the Court, I simply request that the fundamental due process to be accorded
my clients be permitted to proceed just as this application for a best interest
substitute of judgment has been permitted to proceed.
{¶ 68} “ * * *
{¶ 69} “And respectfully, your Honor, * * * I’m asking this Court to
reconsider its own opinion in [a prior analogous case] and that’s because of the
constitutional issues presented * * *.
{¶ 70} “ * * *
{¶ 71} “My clients have * * * not been permitted their procedural due
process and substantive due process rights before the state of Ohio.”
{¶ 72} In my view, these comments adequately preserved constitutional
issues for appellate review. The trial court clearly was put on notice that Aiden’s
parents believed that their constitutional rights were in jeopardy before the trial
court granted the guardianship application. The fact that the written trial court
decision granting the guardianship did not address these issues does not mean that
they were not raised. Nor did they waive their constitutional rights by stipulating
that a guardian would be appointed to make medical decisions not involving the
termination of life support. I note, moreover, that “[e]ven where waiver is clear,
this court reserves the right to consider constitutional challenges to the application
of statutes in specific cases of plain error or where the rights and interests
involved may warrant it.” (Emphasis added.) In re M.D. (1988), 38 Ohio St.3d
149, 527 N.E.2d 286, at syllabus (reviewing the constitutionality of a statute as
applied even though the constitutional challenge was presented at the trial court
“in general terms”). Id. at 151, 527 N.E.2d 286.

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{¶ 73} In Troxel, the Supreme Court of the United States reviewed a
Washington visitation statute invoked by grandparents Jenifer and Gary Troxel.
The statute permitted “’[a]ny person’ to petition a superior court for visitation
rights ‘at any time,’ and authorize[d] that court to grant such visitation rights
whenever ‘visitation may serve the best interest of the child.’ ” Id., 530 U.S. at
60, 120 S.Ct. 2054, 147 L.Ed.2d 49. The children’s mother did not object to a
grant of some visitation, but asked the court to order only one day of visitation per
month, with no overnight stay. The superior court, however, entered a visitation
order allowing the grandparents more extensive visitation based on its conclusion
that more extensive visitation was in the children’s best interests.
{¶ 74} Justice O’Connor of the Supreme Court of the United States
concluded, in a plurality opinion, that, as applied, the “breathtakingly broad”
Washington statute exceeded the bounds of the Due Process Clause. Id. at 67,
120 S.Ct. 2054, 147 L.Ed.2d 49. She concluded that the Washington trial court
had “directly contravened the traditional presumption that a fit parent will act in
the best interest of his or her child,” and specifically noted that the grandparents
“did not allege, and no court has found, that [the mother] was an unfit parent.” Id.
at 69 and 68, 120 S.Ct. 2054, 147 L.Ed.2d 49. The latter aspect of the case was
characterized as “important.” Id. at 68, 120 S.Ct. 2054, 147 L.Ed.2d 49.
{¶ 75} Notably, in the case at bar, allegations of unfitness have been made
against one, if not both, of Aiden’s parents. The trial court did not, however, find
that either parent was responsible for Aiden’s injuries, only that they may have
been responsible.1

1. {¶a} The trial court appointed a limited guardian based on the following reasoning:
{¶b} “Matthew Stein has allegedly abused Aiden Stein ***. Matthew Stein is the subject of a
criminal investigation related to the infliction of Aiden’s current injuries and will undoubtedly be
charged with homicide or negligent homicide if Aiden is allowed to die from the underlying cause
of his condition. Further, the mother, Arica, supports the father’s assertion that he is not to blame
for the current injuries. Additionally, there is evidence that Aiden Stein has suffered prior brain
bleeds consistent with nonaccidental trauma. Neither Arica Heimlich or Matthew Stein can be

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{¶ 76} After Troxel it is unclear whether, and under what circumstances, a
state may constitutionally override a fit parent’s decision as to the care or
upbringing of a child based on the state’s disagreement with the parent’s
conclusion as to a child’s best interests. (“Our cases, it is true, have not set out
exact metes and bounds to the protected interest of a parent in the relationship
with his child.” Id. 530 U.S. at 78, 120 S.Ct. 2054, 147 L.Ed.2d 49 [Souter, J.,
concurring in judgment].) It seems clear, however, that “the Due Process Clause
does not permit a State to infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge believes a ‘better’ decision
could be made,” id. at 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49, and that a court
must accord “special weight” to a fit parent’s determination of the child’s best
interests, id. at 70, 120 S.Ct. 2054, 147 L.Ed.2d 49.
{¶ 77} It is not overly dramatic to observe that this case presents a life-
and-death issue and implicates one of our society’s most precious and
fundamental interests—the rights of parents in their relationship with their
children. For this reason I believe that this cause should be reversed and
remanded to the court of appeals with instructions that it consider the
constitutional implications of the actions of the trial court.
__________________
PFEIFER, J., concurring in part and dissenting in part.
{¶ 78} I concur with the majority’s holding ordering the probate court to
terminate the guardian’s authority to withdraw life support, but for a different
reason. I believe that the probate court lacked jurisdiction to grant any authority
at all to the guardian in this case. I cannot agree that Aiden’s hospitalization for

ruled out as suspects in the prior injury or injuries that Aiden has suffered. Therefore, Arica
Heimlich and Matthew Stein are in a position of a conflict of interest and are unsuitable such that
this Court in its role as parens patriae has a duty to act in the best interest of Aiden Stein and
appoint a neutral third party as limited guardian to make medical decisions on his behalf.”
(Emphasis added.)

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less than one month before the first hearing in Summit County gave jurisdiction to
the probate court of that county. Pursuant to R.C. 2111.02(A), the person for
whom a guardian is appointed must be “a resident of the county or [have] a legal
settlement in the county.” We set a dangerous precedent when we hold that
hospitalization establishes settlement for purposes of probate court jurisdiction.
That holding will affect not just babies, but people at the other end of life. Elderly
citizens with substantial assets could become victims of people with less than
admirable economic motives trying to establish guardianship outside the ward’s
home county.
{¶ 79} Here, Aiden’s fate should be decided in Richland County. Ohioans
do not abandon their homes just by being in the hospital somewhere else.
__________________
O’CONNOR, J., dissenting.
{¶ 80} Because the majority focuses its attention on two chapters of the
Revised Code that are immaterial to this case (Chapters 2133 and 2151) and relies
heavily on public policy arguments to usurp the legislative grant of authority to
the probate court, I must respectfully dissent.
{¶ 81} The majority gives precedence to the rights of the parents over the
best interests of the child by reversing the judgment of the court of appeals. In the
initial part of the opinion, the majority claims that this case solely involves the
“narrow legal issue of whether the Summit County Probate Court exceeded its
statutory authority.” It further correctly states that this case “does not require us
to decide whether it would be in Aiden’s best interest to have life-supporting
treatments withdrawn and comfort care administered or whether the constitutional
rights of his parents were violated.”
{¶ 82} Yet, when addressing the topic of guardianship, the majority states,
“ ‘[A] parent’s desire for and right to “the companionship, care, custody and
management of his or her children” is an important interest that “undeniably

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warrants deference and, absent a powerful countervailing interest, protection,” ’ ”
quoting Lassiter v. Dept. of Social Servs. (1981), 452 U.S. 18, 27, 101 S.Ct. 2153,
68 L.Ed.2d 640, and Stanley v. Illinois (1971), 405 U.S. 645, 651, 92 S.Ct. 1208,
31 L.Ed.2d 551. Later, the majority reiterates its focus on the fundamental rights
of the parent when citing Santosky v. Kramer (1982), 455 U.S. 745, 753-754, 102
S.Ct. 1388, 71 L.Ed.2d 599, which addresses the parents’ fundamental rights in
the care, custody, and management of their children and the provision of
fundamentally fair procedures when the state moves to intervene. This is a
discussion of the very parental constitutional right the majority declared
irrelevant.
{¶ 83} It is fundamental that R.C. 2133.08 applies only to adults and
therefore its dictates have no relevance to the case at hand. The bill that enacted
this statute also modified the Durable Power of Attorney for Health Care Act,
R.C. 1337.11 et seq., and stated, “The General Assembly declares that its several
intents in enacting Amended Substitute Senate Bill No. 13 of the 118th General
Assembly [the bill that first enacted the Durable Power for Health Care Act] did
not include any intent to affect the ability of competent adults or the guardians of
incompetents or minors to make informed health care decisions for themselves or
their wards." (Emphasis added.) Section 5 of Am.Sub.S.B. No. 1, 144 Ohio
Laws, Part I, 64. R.C. Chapter 2133 establishes Ohio’s do-not-resuscitate law for
adults and complements the durable power of attorney for health care. Each
expressly applies only to adults. R.C. 1337.12(A)(1); 2133.08(A)(1). Both
involve end-of-life care for adults. The General Assembly expressly stated when
enacting R.C. Chapter 2133 that provisions relating to terminally ill adults do not
affect the ability of the guardian of a minor to make informed medical decisions.
Aiden is an infant. Accordingly, R.C. 2133.08 does not affect this case.
{¶ 84} The essence of this probate case is that the actions of the parents
necessitated the appointment of a guardian. R.C. 2111.06 provides that “[a]

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guardian of the person of a minor shall be appointed as to a minor * * * whose
parents are unsuitable persons to have the custody and tuition of such minor.” The
nature of the injuries to Aiden and the circumstances stated in the majority
opinion clearly support the probate court’s finding that the parents are “unsuitable
persons.”
{¶ 85} R.C. 2111.50(F) unquestionably authorizes the probate court to
make decisions regarding “medical or surgical care or treatment of incompetents
or minors subject to guardianship, [for] the probate court has full parens patriae
powers unless otherwise provided by a section of the Revised Code.” The
decision to remove life-sustaining measures is such a decision. See In re
Guardianship of Crum (1991), 61 Ohio Misc.2d 596, 580 N.E.2d 876 (probate
court has power under R.C. 2111.50 to authorize guardian of a minor to refuse or
terminate life-sustaining care of ward).
{¶ 86} The majority interjects a layer of procedure that is not mandated by
the legislature. It is not a prerequisite that the parents’ rights be terminated before
the probate court can act. The termination of parental rights is governed by R.C.
Chapter 2151 and is wholly independent of the appointment of a guardian.
Parental rights cases are adjudicated by juvenile courts. See, e.g., R.C. 2151.414.
Adjudicating the necessity of a guardianship is the province of probate courts.
See R.C. 2111.06. While in the case of a minor, the powers of the courts may
overlap, the two courts serve different roles. A probate court may appoint a
guardian over decisions of the person and the estate where the parents are
“unsuitable” to serve as guardian. R.C. 2111.06. The probate court also has the
power to appoint a limited guardian where it serves the best interest of the ward
and where only certain aspects of the ward’s person or estate need to be
safeguarded. See R.C. 2111.02(B)(1). In contrast, a juvenile court may terminate
parental rights where a child is abused, dependent, or neglected. R.C. 2151.353.
The role of the juvenile court then is to appoint a person or entity to raise the child

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in a suitable environment. Id. A juvenile court’s decision may result in
temporary custody or permanent custody, but it cannot be fragmentary. Disputes
arising from the overlapping power of the courts are not new. See Hoffman v.
Hoffman (1864), 15 Ohio St. 427, 1864 WL 51 (a probate court cannot by letters
of guardianship interfere with a child custody adjudication of another court).
Juvenile courts are equally bound by prior probate rulings. In re Miller (1986), 33
Ohio App.3d 224, 515 N.E.2d 635 (where a probate court appoints a guardian for
a minor child, the probate court retains continuing and exclusive jurisdiction over
the ward and the guardian; thus, a juvenile court is without jurisdiction to grant
custody of the ward to another person until the guardianship has been terminated).
Here, the mother and father consented, in effect, to the Richland County Juvenile
Court’s finding that Aiden was a “dependent/abused” child and the grant of
temporary custody of Aiden to Richland County Children Services Board
(“RCCSB”).2 According to the court below, RCCSB moved for an order to
withdraw life-sustaining treatment from Aiden, and the juvenile court responded
by ordering, “All decisions regarding medical care for Aiden Hemlich [sic], minor
child, shall be made jointly by [RCCSB] and the child’s parents, upon the advice
of the child’s physicians.” However, the juvenile court stated that a court of
competent jurisdiction could supersede the medical authority granted by it. Thus,
the juvenile court found that it is without jurisdiction over this case because it
lacks authority to grant the requested relief. This is a guardianship case.
Jurisdiction was properly in the hands of the probate court.
{¶ 87} The crux of the majority’s argument that the probate court lacked
the authority to permit the guardian to withdraw life-supporting treatment is a
statement that this decision is not a medical one. The finding that the withdrawal
of life-supporting treatment goes beyond the scope of a medical decision is stated

2. RCCSB is a party to this case and is aligned with the appellees.

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 January Term, 2004

without any support whatsoever. To the contrary, the decision that a child-patient
has permanently lost high-level brain function and should be allowed to die is a
decision relating to medical care or treatment, and as such must be made with the
best interests of the child-patient foremost in mind. See In re Guardianship of
Myers (1993), 62 Ohio Misc.2d 763, 773, 610 N.E.2d 663; In re Guardianship of
Crum (1991), 61 Ohio Misc.2d 596, 580 N.E.2d 876; 77 Corpus Juris Secundum
(1994) 552, Right to Die, Section 5. The act of withdrawing life-support
mechanisms and administering comfort care will permit Aiden to die, not from an
overt act of the medical professionals but from the natural consequences of the
severe injuries inflicted upon this child. The majority acknowledges as much.
{¶ 88} The overwhelming medical expert testimony agreed on the nature
of the injuries, the manner in which they were inflicted, and the prognosis for the
child. The probate court and the guardian acted within the powers granted them
under R.C. 2111.50 when they decided to withdraw life-sustaining treatment from
Aiden.
{¶ 89} The majority concludes, “The fact that a child is in a permanent
vegetative state is not sufficient reason to deny parental rights, absent evidence of
abuse or neglect. The right to withdraw life-supporting treatment for a child
remains with the child’s parents until the rights are permanently terminated.” As
previously discussed, this appeal did not emanate from proceedings in juvenile
court. A discussion of parental rights is misplaced.
{¶ 90} The issue we are presented with is whether the probate court
abused its discretion under R.C. Chapter 2111. Here the probate court was faced
with overwhelming evidence of severe physical abuse by one parent and the other
parent’s allegiance to the alleged abusing parent. The evidence supporting the
proposition that the father caused Aiden’s injury is sufficient to find the father
unfit. The mother’s ability to decide what is in Aiden’s best interest has been
hopelessly compromised by her knowledge that when Aiden dies, the father will

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be charged with murder. Her conflict of interest is glaringly obvious. A conflict
of interest may justify the appointment of a guardian. In re Guardianship of
Muehrcke, Cuyahoga App. No. 81353, 2003-Ohio-176, 2003 WL 132422.
Unfortunately, the majority imagines future scenarios that are irrelevant to the
case at hand. To presume that Aiden’s mother will suddenly change course to do
anything but support the father and align with what she perceives as best for
Aiden is ludicrous. The probate court, following a finding that the parents are
unsuitable, stands in the shoes of the parents. That is all that is required when
decisions, including medical decisions, have to be made for children whose
parents are not suitable to do so.
{¶ 91} The conclusion that withdrawing life support would be the
functional equivalent of a permanent termination of parental rights again focuses
on the unnecessary. As discussed above, the probate court has the statutory
authority to appoint a guardian for the purpose it did in this case. The majority
concedes this point but reasons that until parental rights are terminated, the
appointment of a guardian with “authority to withdraw life-supporting treatment
for Aiden is premature.” The only provision in the Revised Code that can be read
to grant authority to appoint such a guardian over a child is R.C. 2111.50. So the
majority must agree that the probate court is the court to exercise such authority.
{¶ 92} The majority finds this authority limited by the United States
Supreme Court’s pronouncement, “ ‘When the State moves to destroy weakened
familial bonds, it must provide the parents with fundamentally fair procedures,’ ”
quoting Santosky v. Kramer, 455 U.S. at 754, 102 S.Ct. 1388, 71 L.Ed.2d 599.
The majority finds this case to be analogous to the termination of parental rights
because the end result of the guardianship will be Aiden’s death. Even if the
analogy were accurate, the majority fails to state how the procedure provided for
under R.C. Chapter 2111 is not fundamentally fair. In any event, the analogy is
immaterial and confuses the issue. The probate court is not deciding whether

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Aiden should be permanently removed from his parents. This is not a custody
case. It should not be treated as one.
{¶ 93} The probate court’s appointment of a medical guardian is
authorized under R.C. Chapter 2111. R.C. 2111.50(F) authorizes the court and
guardian to withdraw life support. R.C. Chapters 2133 and 2151 are not
implicated. They do not control or even inform this decision. Because the
probate court acted within its statutory authority when appointing the limited
guardian, I vote to affirm its decision and that of the court of appeals.
__________________
E.P. Markovich Co., L.P.A., and Edward P. Markovich, for appellants.
Brouse McDowell, Linda B. Kersker, Jay E. Krasovec, and Clair E.
Dickinson, for appellee Ellen Kaforey, guardian.
David Kitzler, for appellee Richland County Children Services Board.
_____________________

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