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For the first time, a state supreme court is being asked to consider whether a court-appointed guardian can decide if a minor child, allegedly abused by its parent, should be removed from life-support. The Ohio case focuses on 10-month-old Aiden Stein, who suffered a massive brain injury that damaged his cortex and left him in a vegetative state. Aiden’s parents, who lost temporary custody in April due to allegations of child abuse, have petitioned the Ohio Supreme Court to overturn two lower court decisions that will allow a medical guardian to remove their child from life support. In re Guardianship of Aiden Stein, C.A. No. 22092. On the morning of March 15, 2004, Aiden Stein was alone with his father, Matthew Stein, who claims that his son had difficulty breathing and had lost consciousness. But doctors at Akron Children’s Hospital, as well as the trial court’s independent medical expert, assert that the father’s explanation is incompatible with his son’s massive brain injury. They diagnosed Aiden’s condition as Shaken Baby Syndrome, and recommended to Richland Child Services that Aiden be removed from life-support, according to the court record. “[The hospital] came to us as they would a parent and said we’d like to turn the machines off,” said David Kitzler, a partner at Anderson, Will, O’Donnell & Kitzler in Mansfield, Ohio, and the attorney for Richland Child Services, Aiden’s temporary custodian. But Kitzler said Ohio Juvenile Court and Child Services are empowered only to take steps to preserve life, not terminate it. Therefore, an attorney for the hospital had to petition Summit County Probate Court for medical guardianship. After a four-day hearing in April, Summit County Probate Judge Bill Spicer appointed an attorney-nurse, Ellen Kaforey of Akron, Ohio, as the limited medical guardian to decide the issue of life-support for Aiden. Kaforey planned to have Aiden removed from the ventilator on June 10. The parents, represented by Akron solo practitioner Edward P. Markovich, appealed to Ohio’s 9th District Court of Appeals, which upheld Spicer, 7-0. “I expected the 9th to affirm,” Markovich said. “I didn’t expect the collateral attack on the constitutional issue,” he added, referring to the 9th District’s refusal to hear the parents’ constitutional claim. Aiden’s parents had argued that the medical guardianship went forward before their parental rights had been fully terminated by the juvenile court. But the 9th District said the argument was not properly raised nor preserved in the trial court. Instead, it focused on the parent’s claim that Spicer did not have proper authority from Ohio statute R.C. 2111.06 to authorize a medical guardian to make decisions over life-support for a minor. Spicer has twice used the statute before in similar cases where the life-support was removed, according to Child Service’s Kitzer. Those cases were not appealed. ‘Critical issues’ To date there have been four similar cases in Ohio, according to Kitzler, who has been with Child Services since 1978. Aiden’s is the first to reach the Ohio Supreme Court. Kitzler said he knew of no other cases on point that have reached the supreme court of any other state, nor did the 9th District point to any. Writing in concurrence, 9th District Judge Donna J. Carr said there are a number of unresolved “critical issues.” Carr said she doubted the legislature intended medical guardians to make decisions over life-support of a minor. If it had, she said, it would have named that as among the guardian’s statutory powers and included specific standards as guidelines. “I question whether parental rights are adequately protected under such a statutory scheme or whether in fact the legislature even contemplated the use of the statute in this manner,” Carr wrote. Matthew Stein maintains that he did not cause harm to Aiden. The baby’s mother, Arica Heimlich, is supporting him. They assert that Aiden had irregular head growth from birth and was twice taken to the hospital for it, once with bloody eyes. “There are no prior allegations of abuse,” said Markovich. “You’ve got a mom in labor for 22 hours. Parents that are 21 years old with no money and a baby sick from birth and in feeble condition.” Markovich asserted that any kind of anoxia will cause a brain to swell. “It’s entirely likely that when [Matthew Stein] said the baby was choking, that’s all it was.” McAree’s e-mail is [email protected].

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