In re I.S. , 2022 Ohio 3923 ( 2022 )

[Cite as In re I.S., 2022-Ohio-3923.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE I.S. :
A Minor Child : No. 111508
[Appeal by A.S., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, VACATED
IN PART AND REMANDED
RELEASED AND JOURNALIZED: November 3, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD22900416
Appearances:
Scott J. Friedman, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
EILEEN A. GALLAGHER, P.J.:
Appellant-mother A.S. (“Mother”) appeals the judgment of the
Cuyahoga County Court of Common Pleas, Juvenile Division (the “juvenile court”),
that (1) adjudicated her minor child I.S. to be a neglected child, (2) placed I.S. under
the protective supervision of the appellee, the Cuyahoga County Division of Children
and Family Services (“CCDCFS” or “the agency”) and (3) ordered Mother to obtain
medical treatment for I.S. that is contrary to Mother’s religious beliefs.
Mother follows the teachings of Elijah Muhammad and says her
religious beliefs forbid surgery or “put[ting] any foreign objects in your body.” Based
on the recommendation of I.S.’s doctors, the juvenile court ordered Mother to
schedule I.S. for a surgical procedure to correct a patent ductus arteriosus (a
congenital heart condition) (“PDA”). Mother contends that the adjudication of
neglect and the juvenile court’s dispositional order violate her rights to freely
practice her religion and direct the upbringing of her own child. She argues that the
juvenile court overstepped because I.S.’s condition is not immediately life
threatening. She contends that no intervention is presently necessary and that she
should be allowed to continue monitoring the condition.
For the reasons that follow, we affirm the juvenile court’s adjudication
of neglect and we affirm in part and vacate in part its dispositional order.
I. Factual Background and Procedural History
I.S. was born on December 16, 2019.
On January 11, 2022, CCDCFS filed a complaint for neglect and
temporary custody along with a motion seeking predispositional temporary custody
and authority to consent to any medical treatment necessary to address I.S.’s
medical conditions. The complaint alleged that (1) I.S. has life-threatening medical
needs that Mother has failed to appropriately address; (2) Mother has not been
consistent with necessary medical care for I.S., resulting in further harm to I.S. and
(3) Mother has been offered numerous options by medical staff to assist her in
addressing I.S.’s medical needs, but Mother repeatedly rejected these medical
recommendations.
The complaint further alleged that the agency made reasonable efforts
to prevent the removal of I.S. from the home and removal from the home was in
I.S.’s best interest.1
The agency supported its motion for predispositional temporary
custody with an affidavit from CCDCFS social worker Chasidy Balfour. In the
affidavit, Balfour attested to the allegations in the complaint. She further described
that I.S.’s medical issues could result in death if left untreated and that Mother had
been referred to numerous specialists for testing but had not followed through on
those referrals. Balfour averred that that the agency’s reasonable efforts to prevent
removal included a “referral for community-based services.”
The magistrate held a telephonic arraignment and emergency-custody
hearing on January 28, 2022. At this hearing, counsel for the agency and Mother
reported that they had discussed the matter and jointly recommended holding the
motion for temporary custody in abeyance in favor of “some specific orders * * *
short of removal.” Agency counsel indicated that “we don’t want to unduly
traumatize the child and cause a removal in a placement if it’s really not necessary.”
As it relates to the agency’s concern about I.S.’s PDA, counsel reported that Mother
1 As for I.S.’s father, the complaint alleged that Mother refused to provide the
identity of the biological father and the alleged father had failed to establish paternity and
had failed to visit, support or communicate with I.S. since I.S.’s birth.
had sought a second opinion on whether surgery was needed. I.S.’s guardian ad
litem noted that it “does not appear that the need for heart surgery * * * is needed
imminently.” Agency counsel indicated that the agency may pursue temporary
custody “down the road [if we] feel like the surgery or the repair of the heart is
needed and not forthcoming * * *.” As it relates to the non-PDA medical concerns
the agency had, Mother’s counsel indicated that Mother had made appointments for
I.S. to undergo two tests the agency sought. The agency requested several specific
orders requiring Mother to complete these tests, as well as one further test related
to the non-PDA medical concerns, and to sign any necessary releases to allow the
agency to help facilitate the appointments.
The magistrate journalized an entry setting forth the agency’s requested
orders on the same day as the hearing.
On March 15, 2022, the magistrate held a pretrial conference. Counsel
did not provide any update regarding the concern about I.S.’s PDA. As to the non-
PDA medical concerns, agency counsel reported that I.S. had undergone two of the
ordered tests but had not completed the necessary follow-up to one of the tests.
Counsel further reported that Mother had taken I.S. for the final ordered test but the
test could not be completed (through no fault of Mother). Agency counsel requested
that the juvenile court continue to hold in abeyance its motion for temporary
custody and authority to consent to medical procedures.
On April 5, 2022, the agency amended the complaint to change its
dispositional request to protective supervision (as opposed to its original request for
temporary custody).
A. The Adjudicatory Hearing on the Complaint
The adjudicatory hearing proceeded on April 6, 2022. The agency
presented two witnesses, Dr. Eva Kubiczek-Love and agency social service worker
Chasidy Balfour.
1. Dr. Eva Kubiczek-Love, I.S.’s Pediatrician
Dr. Eva Kubiczek-Love testified that she is a pediatric physician with
the Cleveland Clinic and sees pediatric patients in an outpatient medical setting. She
said she has worked in pediatric medicine for 20 years, having worked ten years in
a pediatric emergency room and ten years at the Cleveland Clinic after her medical
residency.
Dr. Kubiczek-Love testified that she was assigned as I.S.’s primary
care physician shortly after his birth. She said that I.S. has Down syndrome,
Trisomy 21 and a congenital heart defect called a patent ductus arteriosus. In
describing what a PDA is, the doctor said that a fetus normally has a channel
between two vessels coming off the heart to bypass the lungs in utero. She said this
channel typically closes when a baby takes its first breath after birth, but I.S.’s
channel remained open.
Dr. Kubiczek-Love testified that medical staff discovered I.S.’s PDA
shortly after his birth and before he left the hospital. She said that I.S. underwent
an echocardiogram at some point and the test showed that I.S. had “a moderate sized
PDA with what’s called left to right shunt.” She related that this means there was
blood flowing from left to right. She said that the cardiology team’s initial
recommendation was for I.S. to undergo a repeat ultrasound but Mother did not
allow I.S. to undergo a second test. Dr. Love said she was concerned that Mother
seemed “very reluctant to want to pursue that any further as far as looking into how
it was progressing and what options were available for closure if it needed to be
closed.”
The doctor testified that the PDA was one of several medical concerns
she had with respect to I.S. Specifically, Dr. Kubiczek-Love recommended (1) repeat
lab work to check for thyroid issues because children with Down syndrome are at a
higher risk for those problems and (2) that I.S. follow up with an otolaryngologist
because he was snoring a lot and had significant upper-airway noise, which is also
commonly seen in children with Trisomy 21.
Dr. Kubiczek-Love testified that over time she also became concerned
that I.S. was not thriving and had some ongoing weight loss. She said she found it
difficult to impress upon Mother her concern that “the multifactorial issues” of his
ear, nose, and throat issues, his cardiac issues and his thyroid issues had not been
addressed. She said all of these issues could be contributing to I.S.’s failure to thrive.
The doctor said her recommendations to Mother included following
up with an otolaryngologist to monitor the upper-airway issues, consulting with a
cardiologist on the PDA, attending appointments with a nutritionist and obtaining
a renal–bladder ultrasound.
Dr. Kubiczek-Love identified a letter that she wrote — dated
September 29, 2021 — documenting her medical concerns. She wrote that I.S. is 21
months old and has an established diagnosis of Trisomy 21 with “several active
issues,” including nutritional issues, a patent ductus arteriosus, obstructive sleep
apnea, a history of hydronephrosis and hypothyroidism. She wrote that I.S.
continues to have “profound weight loss/decline” which is likely secondary to these
several medical problems.
Of I.S.’s alleged nutritional issues, Dr. Kubiczek-Love wrote that she
has “become increasingly more concerned for [I.S.’s] weight.” She wrote that I.S.’s
growth chart — which has been adjusted for his Trisomy 21 — “clearly demonstrates
significant failure to thrive/FTT which means that [I.S.] does not have the ability to
combat the myriad of medical issues that are currently being left untreated and
severe FTT can result in death.” She wrote that Mother had not followed up on a
referral she made for Mother with a nutritionist.
Dr. Kubiczek-Love also wrote that I.S. has a “moderate sized PDA” and
that the cardiology team had discussed with Mother that leaving this condition
unrepaired “may result in both ongoing inability to thrive (again as evidenced by his
growth chart) but may also result in death.”
Dr. Kubiczek-Love wrote that I.S. has “likely significant obstructive
sleep apnea/OSA which translates to him likely having low oxygen levels while
sleeping and may result in cardiac strain if not addressed.” She wrote that this
condition may be contributing to I.S.’s failure to thrive and Mother “has not followed
through on the recommendations * * * to have a sleep study to evaluate the degree
of severity of his OSA nor to follow up with ENT.” She wrote that Mother had
previously noted cessation of breathing, which is “unhealthy for [I.S.’s] brain but can
be fatal,” although Mother apparently reported that this symptom had stopped. Dr.
Love noted that I.S. has “ongoing rhonchorous breathing.”
Dr. Kubiczek-Love wrote that I.S. has a history of hydronephrosis
(dilated kidney) but that Mother had not pursued a repeat renal–bladder ultrasound
and “worsening of his kidney condition can result i[n] deleterious medical
consequences with hypertension and renal complications.”
She also wrote that Mother has “not engaged with Endocrinology nor
has she had repeat thyroid levels done.” She wrote that “left untreated,
hypothyroidism may result in irreversible developmental delays, inability to thrive
and death.”
In her hearing testimony, Dr. Kubiczek-Love confirmed that there will
be a risk of death from hypothyroidism and from the PDA if those conditions were
left untreated over time. She also confirmed that if any renal issues are not
addressed, I.S. could develop high blood pressure and renal complications. In
addition, she testified that, according to the electronic medical records, Mother did
not attend any appointments with a nutritionist. She said Mother did attend one
appointment with an otolaryngologist before September 29. She said Mother had
not obtained the renal–bladder ultrasound at that time.
Dr. Kubiczek-Love testified that her recommendation for treating a
PDA would generally be to follow the cardiology team’s recommendation. She said
that while the recommendation is dependent on the size of the PDA, she is certain
that at some point in I.S.’s life, his PDA would have to be addressed. She said her
particular concern regarding I.S. was that if the PDA was contributing to the failure
to thrive, it should be closed “sooner rather than later.”
Dr. Kubiczek-Love further testified that if the PDA were not addressed
in a timely manner, I.S.’s heart could become infected. She said that the PDA would
also put extra work on I.S.’s lungs, which could lead to chronic lung disease. This
latter concern was compounded by I.S.’s upper-airway issues, which were also
leading to “more back pressure” on I.S.’s lungs. She described that this added work
requires more calories, which may have been why I.S. was not growing sufficiently.
“And if you can’t grow, if you can’t gain weight, you cannot — your body cannot
handle these things,” she said; “[t]hey just simply eventually will give up.”
She said the risk of chronic lung disease would never go away as long
as the PDA remains open. She said she consulted with the cardiology and
otolaryngology teams about I.S. and “there was an unequivocal agreement from his
medical care team that this was of grave concern.” On cross-examination, Dr.
Kubiczek-Love admitted that she was not a pediatric cardiologist. She said she “just
took what their concerns were and, you know, interwove it as a part of his medical
care team.” She said that she took the cardiology team’s recommendation and
concerns and put them “in the context of everything that was going on with him at
the time.” She said that she spent a great deal of time speaking with every member
of I.S.’s care team to “help make sure that I wasn’t miscommunicating my concerns,
that I wasn’t over dramatizing in the context of all of his medical issues.”
The doctor said that the procedure to close a PDA is typically
performed as soon as possible once the child has gained enough weight to undergo
the procedure which “is certainly even less than one year of life.” She said that once
the PDA is closed, “it’s fixed, it doesn’t come back.”
Dr. Kubiczek-Love testified that there were two ways to close a PDA,
both surgical. She described that the first way, catheterization, involves threading a
catheter through a small incision in the groin to the PDA and placing a coil into the
PDA to seal it. Specifically, she described the procedure as follows:
[T]hey open the vessel in the groin, and then they sort of push through
a catheter, and the catheter contains the coil, and then they lead it to
the PDA, place the coil and pull the line.
The doctor also testified that, while every child is different, children
with Trisomy 21 typically handle this procedure well. Medical staff would normally
observe the child overnight after the procedure “simply because of the complexity of
their upper airway issues.”
On cross-examination, the doctor could not say what complications
could occur through the catheterization procedure.
The doctor described that the second way to close the PDA would be
by cutting open the chest wall and addressing the PDA through the chest. The doctor
said she did not know specifically how the surgeons would close the PDA, but she
said it would “probably be what’s called a ligation, which is when they literally tie it
shut.”
Dr. Kubiczek-Love said that, as it relates to I.S., she would
recommend to close the PDA “as long as the upper airway issue is stable and he is
safe to sedate.”
On cross-examination, Dr. Kubiczek-Love admitted that, while I.S.’s
PDA was life-threatening, it could be monitored over the course of time. She said
that there might be medication and continued testing while the PDA is being
monitored. She admitted that if the PDA is being monitored, any increase in the
threat or any deterioration of the condition would be noted.
The doctor further admitted on cross-examination that she did not
know how frequently PDAs close spontaneously — that is to say, without medical
intervention — after two years of life. But she said she had never heard of a PDA
closing spontaneously in an older child.
Dr. Kubiczek-Love further admitted on cross-examination that I.S. is
not currently treating with her and she had not seen him for a year. She said I.S.
was scheduled to see her for his 16-month wellness checkup but Mother did not
bring I.S. in for the appointment. The doctor admitted that she could only testify
about I.S.’s condition as she knew it while she was treating him.
2. Chasidy Balfour, Agency Social Service Worker
Chasidy Balfour testified that she is a social service worker with
CCDCFS. She said she received a referral around April 2021 concerning medical
neglect of I.S.
Balfour said she reviewed I.S.’s medical records, visited Mother and
spoke to her about the agency’s concerns. She said that at the time of the referral,
I.S.’s medical team’s concerns were that all the issues Dr. Kubiczek-Love described
could be life threatening for I.S. She said that one of the agency’s primary
recommendations was that Mother follow the recommendation for closing I.S.’s
PDA. Balfour said that it took some time to get appointments with the specialists
that needed to be consulted. For example, they were not able to get an appointment
with a cardiologist until around September 2021.
Balfour said that the Cleveland Clinic cardiology team had several
meetings about I.S., some of which she was able to attend. She testified that the
agency obtained an opinion around September 2021 that I.S.’s doctors
recommended closing the PDA. On cross-examination, she specified the cardiology
team had a conference regarding whether they still wanted I.S. to have the surgery
and the team reported to the agency that they still recommend the procedure.
Balfour testified that between September and late November 2021, she
discussed with Mother the agency’s opinion that — based on the doctors’
recommendations — I.S. needed to have the surgery to fix his PDA. She said Mother
was uncomfortable with the procedure because of her religion.
On cross-examination, Balfour admitted that Mother obtained a
second opinion at University Hospitals at some point regarding the PDA.
On cross-examination, Balfour also admitted that Mother had taken
I.S. to an otolaryngologist and, she thought, to a urologist. She further admitted that
I.S. had gone for a sleep study but the test could not be performed because I.S. was
congested at the time.
On cross-examination, Balfour admitted that Mother seemed sincere
in her religious beliefs. On redirect, Balfour identified written excerpts Mother had
provided the agency to support her objections to the PDA procedure. Mother wrote
that these excerpts were from various books written by Elijah Muhammad,
including How to Eat to Live, Book 2 and Our Saviour Has Arrived. The excerpts
relate, among other things, that “[T]here is no cure in drugs and medicine,” that
“[o]ur enemies have resorted to drugs to prolong life due to the fact that they do not
want to accept the right way of God to prolong life over their commercial desire” and
that “[t]hey have been building up their arm and Arsenal and factories for this day
in order to kill the black man[;] [t]hey are doing this in so many ways with drugs and
with surgeon’s knife in the hospitals.”
Balfour testified that the agency filed the complaint in this matter
because it felt I.S. needed to undergo the procedure to close his PDA and Mother
refused to obtain the procedure for I.S.
On cross-examination, Balfour admitted that both Mother’s home,
and Mother, are appropriate for, and with, I.S. Balfour further admitted that I.S.’s
basic needs are being met and there are no immediate safety threats in the home.
She said that she assumes that I.S. is meeting his milestones; he does not talk when
she is there, but he walks and plays. She testified that at her last visit with I.S. in
April 2022, I.S. was walking and playing with a ball.
The court admitted two agency exhibits, Dr. Kubiczek-Love’s
September 29, 2021 letter and the written religious excerpts Mother had sent the
agency, without objection from Mother.
3. Mother’s Case
Mother did not offer any witnesses or evidence at the adjudicatory
hearing.2
B. The Magistrate’s Finding of Neglect
The magistrate issued findings of fact on April 7, 2022. The
magistrate found that the allegations in the complaint had been proven by clear and
convincing evidence and that “a danger to the child exists.” The magistrate
adjudicated I.S. to be a neglected child.
2 Mother moved to admit two exhibits and to continue the hearing to call another
agency employee. The magistrate denied those requests. Mother does not challenge those
rulings on appeal.
C. The Dispositional Hearing on the Complaint
The dispositional hearing commenced on April 8, 2022.3 The parties
stipulated to the court’s incorporation of the evidence from the adjudicatory
hearing.
1. The Agency’s Case
The agency presented one witness, agency social service worker
Jennifer Wagner.
Wagner testified that she is a social service worker with CCDCFS and
has been assigned to I.S.’s case since January 2022.4 She said that she has met with
Mother, seen I.S. and spoken with medical providers and social workers since being
assigned to I.S.’s case.
Wagner testified that it is her understanding that I.S. is two years old
and needs a procedure to close a PDA. She said that she has separately spoken with
medical professionals and Mother about the procedure. She said she has offered to
attend meetings with Mother and medical professionals together, but Mother
declined the offer.
Wagner testified that she has completed two visits to Mother’s home.
She described the home as “a nice furnished home.” She testified that Mother or
3 At the start of this hearing, Mother’s counsel reported that Mother wanted a new
attorney because Mother felt her counsel was ineffective. The agency objected to Mother’s
motion for a new attorney, and the magistrate denied the motion. Mother does not
challenge that decision on appeal.
4 Wagner said she was also briefly assigned to the case in 2021.
another one of Mother’s children is usually holding I.S. during the visits and I.S.
“[s]eems to be a happy, comfortable little boy in her arms.” On cross-examination,
Wagner described that during one visit I.S. seemed “like a normal two year old.”
Wagner testified that during the initial visit, she discussed with
Mother that she could get her some resources, support her and go to medical
appointments with her. She also discussed with Mother that it was important that
I.S. undergo the procedure to close the PDA. She said she has discussed with Mother
the agency’s concerns about I.S., which include the fact that I.S. has Down syndrome
and “other medical complex issues” and there is a concern about I.S.’s growth. She
said she told Mother that closure of the PDA is what the doctors recommend and is
“something that’s minor that through the grand scope of everything that [I.S.] is
gonna have to deal with, this is something that could lessen stress on his life.”
Under examination by I.S.’s guardian ad litem, Wagner testified that
she had spoken with the Cleveland Clinic cardiologist about the cardiologist’s
recommendation for closure and the cardiologist told her that the recommendation
was based on I.S. having Down syndrome as I.S. was “already going to have high risk
for pulmonary issues or lung issues.” She testified that the cardiologist continued
as follows:
And with this PDA already putting extra fluid and stress right here. His
concern was given the time of COVID and just the example that we
spoke of, he was very concerned that if this child gets, you know, I think
he stated to me, God forbid, COVID or bronchitis even, that it would be
much harder for him to get better because of this. And he is concerned
as far as if you have the PDA — if you don’t get the PDA closure when
they’re younger, the risk continues to be more and more as he gets
older. He did state to me that the — [I.S.] is a different kind of child for
him, given the fact that he has [D]own syndrome and his PDA is not a
small PDA. It’s more on the small to moderate side. And then given all
of his extra health issues, was his higher risk of concern.
Wagner said she believed Mother understood what Wagner was
discussing and Mother acknowledged that closure is the doctors’ recommendation.
Wagner testified that Mother nevertheless refused to allow I.S. to undergo the
procedure because it was against her religious beliefs. Wagner said Mother did not
comment on how the closure might affect I.S.’s health and, indeed, refused to talk
with her about I.S.’s medical information. She said the agency tried to better
understand Mother’s religious objection by offering to speak with a religious person
who could educate agency personnel on Mother’s religion.
Wagner said Mother obtained a second medical opinion from
University Hospitals (“UH”) about I.S.’s PDA and the second opinion also
recommended closure. She said she spoke with I.S.’s cardiologist at University
Hospitals about I.S. She said the cardiologist contacted her, told her that Mother
had sought a second opinion from them, they offered to close the PDA and she
declined, they scheduled I.S. for a follow-up appointment with a pediatrician and
Mother missed that appointment.
On examination by I.S.’s guardian ad litem, Wagner testified that the
University Hospitals cardiologist did not express an opinion to her about whether
the PDA was life threatening. She said the cardiologist emphasized that the
cardiologist “had limited access to previous medical appointments and * * * she only
could get kind of like a quick snapshot of what was going on right there. And she
was only seeing him for a second opinion. So she did not have time to go and really
consult with everybody and get background charts from everything from his birth.”
Wagner said Mother never offered the agency any alternative
treatment options that she found acceptable that might achieve the same goals as
closure of the PDA.
Wagner identified the University Hospitals pediatric cardiologist’s
written opinion about I.S., which the agency received from University Hospitals.
The medical note lists a visit date of January 20, 2022. The note relates that the
cardiologist saw I.S. for a second opinion regarding the Cleveland Clinic’s
recommendation that the PDA be closed.
The cardiologist wrote that the Cleveland Clinic “had told the mother
that [I.S.’s] growth was poor. * * * When we saw him, his growth was reasonable
when plotted on the down syndrome growth curve[.] * * * I will note that [h]is
growth is appropriate on our scale for this one point, but I don’t have prior weights
to know that he has not been losing weight.”
Regarding I.S.’s PDA, the cardiologist wrote as follows:
I presented him [at] our joint case conference with our surgeons, cath
team, and cardiologists this morning 1/26/2022. The consensus was
he would be a reasonable candidate for PDA device closure given the
left sided heart dilation. Additionally, this would also be protective for
his lungs given his already elevated risk of pulmonary hypertension
with trisomy 21. * * * I confirmed [to Mother] that we would
recommend device closure.
The cardiologist wrote that Mother “said she knew that we would
recommend closure and she respects that but is not willing to do so at the time
because it goes against her religion * * *.”
Wagner also identified what she described as discharge paperwork
from University Hospitals regarding I.S. The document describes that University
Hospitals examined I.S. and performed an echocardiogram on I.S. on January 20,
2022. The document contains several electronic medical notes from physicians at
University Hospitals.
Regarding the physical exam, the medical note indicates that I.S.’s
lungs were “clear to auscultation bilaterally[;] [n]o crackles or rhonchi noted.”
Regarding the echocardiogram, the pediatric cardiologist wrote that
I.S. has a “small PDA with continuous left to right shunting and associated left heart
enlargement.” She wrote that I.S. “is asymptomatic from a PDA perspective and
growth is at approximately the [30th percentile] for both height and weight on the
Down Syndrome growth curve from the CDC, which is appropriate.” She wrote that
I.S. “meets indication for PDA closure.” Of her reasoning for recommending
closure, she wrote as follows:
In these cases, we typically recommend closure of the PDA to prevent
risk of developing pulmonary hypertension. The risk of pulmonary
hypertension is already higher in patients with trisomy 21 so this is
even more important in [I.S.]’s case. * * * I discussed with the mother
that closure of hemodynamically significant PDAs are particularly
important to close in patients with trisomy 21 due to their already
increased risk of developing pulmonary hypertension. The fact that
[I.S.] has left heart enlargement supports the increased amount of
blood going to his lungs which places him at risk for development of
pulmonary hypertension over time. * * * He has no signs or symptoms
of pulmonary hypertension on clinical exam.
***
[Mother] denies additional symptoms related to the cardiovascular
system * * *. [Mother] denies a history of difficulty or sweating with
feeds. He is walking and feeding himself, but mother notes that his
growth is slow and he is only saying a few words.
The cardiologist’s note indicates that Mother asked appropriate
questions regarding the risks involved in the catheterization procedure and was
“aware that transcatheter closure is most commonly performed if anatomy
amendable.”
On cross-examination, Wagner admitted that the cardiologist from
University Hospitals had consulted with other physicians regarding I.S., but she did
not know if Mother participated in any meeting among those physicians.
Wagner testified that Mother has been very reluctant to talk to agency
personnel about this medical information. She said it is her understanding that
Mother does not want a “piece that’s not part of her child’s body” put into I.S. and
also objects to the other surgery option.
Wagner said she consulted with the Cleveland Clinic about potential
appointment availability if Mother became agreeable to the surgery. The Cleveland
Clinic staff told her that I.S. would need to be seen for a follow-up appointment
because the cardiologist had not seen I.S. in some time, then I.S. would need to
receive a new echocardiogram; if I.S. were to be closed through catheterization, the
cardiologist would perform the procedure and had availability over the next two
months.
Wagner said I.S. has had no primary-care physician for the last year
and missed his two-year checkup. She said the agency had counseled Mother about
the importance of getting I.S. a pediatrician. On cross-examination, she said the
agency offered her some recommended physicians but Mother was not interested in
receiving those names and reported that she knew where to find a pediatrician.
Wagner testified that when the complaint was filed in January 2022,
no progress had been made in addressing any of the agency’s medical concerns
about I.S. She said that in the course of this litigation, Mother had been instructed
to get lab work done for I.S. by an endocrinologist, to get an ultrasound for I.S.’s
bladder, and to get a sleep study for I.S. On examination by I.S.’s guardian ad litem,
Wagner testified that Mother was instructed to get this lab work done because I.S.
has hypothyroidism. Wagner said she did not know if the hypothyroidism was life
threatening.
Wagner said that Mother got the endocrinology lab work done but had
not followed up with an endocrinologist regarding the results. Wagner said Mother
did complete the bladder ultrasound. Wagner said that Mother took I.S. for the
sleep study on March 6, 2022, but the test could not be completed because I.S. was
congested. She said Mother had taken no steps to reschedule that study, to her
knowledge.
On cross-examination, Wagner admitted that she does not have a
medical background; she is a social service worker for the agency. She said it
remains the agency’s opinion that I.S.’s medical condition is life threatening. She
admitted that she was not aware whether physicians ever discussed with Mother
whether “holding off” on surgery in favor of continued monitoring was an option.
The agency offered the two exhibits from University Hospitals into
evidence, without objection from Mother.
2. Mother’s Case
Mother testified at the dispositional hearing.
Mother testified that a number of appointments were scheduled for
I.S. after his birth because I.S. has Down syndrome. Mother said she took I.S. to
pediatricians for wellness visits; she first went to a male doctor and then the hospital
switched her appointments to be with Dr. Eva Kubiczek-Love.
Mother said I.S. was also scheduled for an echocardiogram and a
consultation with a cardiologist. Mother said that the cardiologist informed Mother
about I.S.’s PDA after his echocardiogram. She said the cardiologist recommended
that “we can wait for a little while” but I.S. should come back in after about six
months so the doctor could determine if the PDA was still open. Mother said the
cardiologist also told her “something about closing it” during this visit. Mother said
I.S. did not immediately go back to the cardiologist after six months because of the
COVID-19 pandemic.
Mother testified that I.S. saw Dr. Kibuczek-Love one day before
CCDCFS came to her house. She said that at that time, she had an appointment with
the cardiologist and she did ultimately take I.S. to see the cardiologist again, maybe
in October 2021. Mother testified that the cardiologist discussed the risks and
benefits of medically intervening to close the PDA. Mother said the cardiologist told
her that the risks of the procedure included that the anesthesia could kill I.S., that
I.S. could “die on the table” during the procedure and that the catheter may not be
compatible with I.S.’s heart. Mother said that she understood from this
conversation that she would have to worry for the rest of I.S.’s life about the catheter
negatively affecting I.S.’s heart or “fall[ing] to different organs” and causing “sudden
death.” Regarding the procedure’s benefits, Mother testified that the cardiologist
told her that I.S.’s lungs “are great right now, but they can get worse.” She said the
cardiologist told her he wanted to do the procedure.
Mother testified that she did some of her own research on PDAs and
came to the understanding that small to moderately sized PDAs do not have to be
closed. She said she further came to the understanding that the “effects” of a PDA
included being fatigued, not eating and not growing; she testified that I.S. did not
exhibit any of those “side effects.” She said that, to the contrary, I.S. is “like a normal
child;” he eats well, walks, knows sign language and is learning to speak words. She
said that she is a mother of six children and knows “when my child is in distress and
[when] he’s not.” On cross-examination, she continued as follows:
Right now [I.S.] is an energetic little child that you cannot even tell that
he has [D]own syndrome. He’s walking around, he’s talking. He’s very
energetic. They act like he should be laid over and he should be in
distress and he should be exhausted.
He’s none of them things. He’s climbing. He’s walking. He has a whole
playroom in my living room where he’s climbing on the slide and
sliding down. He’s climbing — I have to get him off of stuff where he’s
trying to climb on the table. He’s very energetic, and I do not want them
to change that.
Mother said she also took I.S. for a second opinion from doctors at
University Hospitals. Mother testified that she understood that UH determined that
I.S. is “growing great.”
Mother also said that she took I.S. for thyroid testing and lab work
and it was her understanding that those tests did not reveal any concerns.
Mother testified that she considered all the information she had been
provided and that she found through her own research and decided against the PDA
procedure.
Of her reasoning for refusing the procedure for I.S., she testified that
she is a “true follower of the most Honorable Elijah Muhammad” and had made an
oath to him that she would follow his “d[i]vine instructions from almighty god
Allah.” She described that she believes that Elijah Muhammad teaches the truth
about the world, is her “lord and saviour,” and will return one day. She related that
these teachings include an instruction not to “put any foreign objects in your body”
and to be careful relying on doctors for a number of reasons. She described that
these teachings are skeptical of drugs and instead emphasize learning “how to eat to
live.” On cross-examination, Mother explained her definition of a “foreign object”
as something that is not “made of your body,” like the catheter that would be used
to close I.S.’s PDA. She said she is not opposed to some kinds of medical treatments,
but she described her understanding that followers of her religion are not supposed
to have surgeries or receive blood transfusions or vaccinations.
Mother said that she is not a neglectful mother and loves I.S. “I am
his protector,” she said, “[a]nd almighty god is the only one that can protect him.”
On cross-examination, Mother testified that she believed that doctors cannot cure
I.S. and that the instrument the doctors wanted to put in I.S.’s heart “not only is not
going to cure him, it could lead to more.”
Mother said that if the surgery is not completed now, she plans to
monitor I.S. for as long as is necessary, “because I love him.” She said she would
take him to a hospital if he ever came to be in distress. On cross-examination,
Mother admitted that she would never consent to the surgery because “I cannot go
against my god. * * * I will not go against the most Honorable Elijah Muhammad.”
3. I.S.’s Guardian Ad Litem’s Report and Recommendation
I.S.’s guardian ad litem (“GAL”) filed a written report and participated
at the dispositional hearing.
In the GAL’s written report, he related that he had completed a home
visit at Mother’s home in January 2022 and found it to be “safe, clean, and
appropriate.” He reported that Mother seemed like a “knowledgeable, determined,
and informed parent” with “deep and sincere” religious beliefs. He noted that
Mother “demonstrated detailed knowledge of [I.S.’s] medical history, his diagnoses,
and the recommended course of treatment.” He wrote that Mother expressed a
belief that I.S.’s lungs are “great” and his muscle tone is “fine.” The GAL also noted
that I.S.’s muscle tone appeared to be okay. The GAL reported that he found I.S. to
be a “happy, well-adjusted child” who was developmentally adjusted considering his
age and Trisomy 21 diagnosis. The GAL noted that two of Mother’s other children
were present during the home visit and appeared to have a “strong bond” with I.S.
He wrote that I.S. appeared to be appropriately bonded to Mother and his siblings,
too.
The GAL agreed with the agency that it was not necessary to remove
I.S. from Mother’s home, but he nevertheless recommended that the juvenile court
grant protective supervision over I.S. to the agency and order that I.S. undergo
surgery to correct I.S.’s congenital PDA. The GAL noted his opinion that “the
medical evidence is overwhelming” that surgery to repair I.S.’s PDA was in I.S.’s best
interest. He wrote that the agency “further indicated that open heart surgery was
not necessary, as doctors have offered Mother a ‘less invasive’ option of conducting
the procedure via a catheter in [I.S.]’s groin.” He wrote that his own investigation
“further revealed that the procedure can be done on a relatively non-invasive
manner and will not involve open heart surgery.” He also reported that Mother had
not followed up with an endocrinologist regarding I.S.
At the hearing, the GAL testified that Mother is a suitable parent who
has raised several children before I.S. and is “well versed” in I.S.’s medical
conditions. According to the GAL, I.S. is “doing extremely well, even in light of all
the conditions, congenital conditions that he’s been born with.” He said that I.S. is
walking around Mother’s home and that he has seen I.S. throwing a basketball at a
basketball hoop.
The GAL reported that he saw this as “purely a medical case, medical
issue.” He said he appreciated that Mother went “to the difficulty of getting a second
medical opinion” about the PDA and he acknowledged that there “is some daylight”
between Dr. Love’s opinion and the second opinion from University Hospitals. He
said Dr. Love was adamant that the PDA presented an immediately life-threatening
condition, whereas the UH report and electrocardiogram summary — at least from
his review — do not indicate that the PDA is immediately life-threatening. But, he
said, the UH cardiologist ultimately concluded that I.S. met the indication for
closure of the PDA.
The GAL testified that I.S. was too young to voice any position on
surgery and he believed it was in I.S.’s best interest to (1) remain in Mother’s
custody, (2) have court-ordered protective supervision granted to the agency and (3)
have either of the two PDA-closure procedures ordered. He testified that his
recommendation was based solely on the fact that both the physician at the
Cleveland Clinic and the second opinion from UH recommended that I.S. undergo
a procedure to close the PDA. He said that Mother’s religious beliefs are sincere and
deeply held but that I.S.’s medical needs and best interest take precedent.
4. Closing Argument
The parties’ counsel then gave closing arguments.5 During closing
argument, Mother’s counsel said the following:
* * * [Mother] also testified that she would continue to monitor this
situation regarding the child’s PDA and then take action if and when
something was necessary. I would ask the Court for protective
supervision and to allow the mother — not to order the surgery, just
protective supervision to make sure that the child is monitored and that
— to assist mom with any decisions in the future.
D. The Court’s Grant of Protective Supervision and Mother’s
Appeal
On April 12, 2022, the magistrate issued a decision granting protective
supervision of I.S. to the agency and finding as follows:
Pursuant to ORC §2151.42, the Court finds, based on the facts that have
arisen since the last order of Court was issued or based on facts that
were unknown to the Court at the time, that a change has occurred in
the circumstances of the child or the child’s legal custodian, and that
modification or termination of the order is necessary to serve the best
interests of the child.
The magistrate further ordered as follows:6
5 The juvenile court addressed, at the close of the dispositional hearing, the fact
that the agency had not yet filed a case plan relating to the prospective surgery. Mother
objected to timeliness of the case plan and the juvenile court overruled that objection.
Mother does not assign error from that decision.
6 The juvenile court also ordered that (1) Mother obtain a primary-care physician
for I.S., provide the agency with contact information and a release of information and
schedule a well visit for I.S. and (2) reschedule I.S.’s sleep study and comply with all the
follow-through appointments or recommendations for this study as well as with certain
endocrinology appointments. Mother’s appellate arguments are focused solely on the
PDA surgery, and during the dispositional hearing, she did not express any religious
objection to these other orders the agency sought. On appeal, Mother does not challenge
these other aspects of the juvenile court’s order, except in that she argues that I.S. was not
properly adjudicated a neglected child. Therefore, we will only consider whether the
The case plan is approved.
***
Mother is to schedule the child’s Patent Ductus Arterios[u]s (“PDA”)
closure within fifteen (15) days of journalization, with such preliminary
appointments and final procedure to occur within sixty (60) days of
journalization of the dispositional entry.
***
Mother is to cooperate fully to complete [the] Patent Ductus
Arterios[u]s (“PDA”) procedure within sixty (60) days of journalization
of the dispositional entry and timely comply with any/all
recommended post-procedure appointments and follow-up.
Mother filed timely objections to the magistrate’s decision. The
juvenile court overruled Mother’s objections and affirmed, approved and adopted
the magistrate’s decision and findings.
Mother appealed, raising the following sole assignment of error for
review:
The juvenile court erred when it awarded CCDCFS protective
supervision and required Mother to order medical procedures for her
Child that are contrary to Mother’s religious beliefs.
II. Law and Analysis
Mother challenges both the juvenile court’s adjudication of I.S. as a
neglected child and also the juvenile court’s disposition — placing I.S. under
protective supervision and ordering that I.S. undergo a surgery that Mother does not
want for him. Mother contends that the juvenile court infringed on Mother’s rights
juvenile court erred in adjudicating I.S. a neglected child, placing I.S. in protective
supervision or ordering Mother to schedule I.S. for surgery to close his PDA.
to practice her religious faith and raise her own child. The agency’s case left much
to be desired, especially considering the invasiveness of the treatment options the
agency proposed. But employing the appropriate standards of review, we disagree
with Mother. The adjudication of neglect was supported by sufficient evidence and
ordering a catheterization closure of the PDA was not an abuse of discretion.
We find that the trial court’s order was unduly broad and contained
arbitrary and irrational limits that are not supported by the evidence presented and
we, therefore, narrow and limit the trial court’s order accordingly.
Before addressing the trial court’s specific adjudication and order, we
address Mother’s argument that I.S.’s medical condition was not serious enough to
allow the state to constitutionally intervene.
A. The State’s Power to Order Medical Interventions for Children
The parties seem to agree that Mother has constitutional rights to
freedom of religion7 and to direct the upbringing of her child.8 The parties also seem
7We affirm that Mother has this right. “The First Amendment to the United States
Constitution and Section 7, Article I of the Ohio Constitution safeguard an individual’s
freedom to both choose and employ religious beliefs and practices.” In re Milton, 29 Ohio
St.3d 20, 20, 505 N.E.2d 255, syllabus, modified in part on other grounds, Steele v.
Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 185–186, 736 N.E.2d 10.
8 We affirm that Mother has this right also. Like religious freedom, the right to raise
one’s own child is “‘an essential and basic civil right.’” In re N.B., 8th Dist. Cuyahoga No.
101390, 2015-Ohio-314, ¶ 67, quoting In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997); see also In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990) (a parent has
a “‘fundamental liberty interest’ in the care, custody, and management” of their child),
quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).
[The right to raise one’s own child] includes the right “to direct the
upbringing and education” of one’s child, see Pierce v. Soc. of Sisters, 268
U.S. 510, 534–535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), the right to
to agree that these rights are not absolute and that the state can intervene and order
medical procedures for a child against their parents’ wishes under certain
circumstances. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438,
88 L.Ed. 645 (1944) (“[N]either rights of religion nor rights of parenthood are
beyond limitation.”).
Mother does not challenge that the juvenile court has the statutory
authority to order protective supervision and surgery when those circumstances —
whatever they are — are met. The state “has broad authority to intervene to protect
children from * * * neglect.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28, citing R.C. 2151.01. Ohio’s neglect statute, R.C. 2151.03, provides
that a child whose parents refuse to provide proper or necessary medical or surgical
care or treatment is a “neglected child.” R.C. 2151.03(A)(3). A child who, because
of the omission of their parents, suffers physical injury that harms or threatens to
harm the child’s health or welfare is also a “neglected child” under the statute. R.C.
2151.03(A)(6).9 Once a child has been adjudicated as a neglected child, R.C.
communicate to the child a parent’s moral and religious values, see Pater v.
Pater, 63 Ohio St.3d 393, 397, 588 N.E.2d 794 (1992), to direct their
“religious upbringing,” see Wisconsin v. Yoder, 406 U.S. 205, 213–214, 92
S.Ct. 1526, 32 L.Ed.2d 15 (1972), to select, within reason, whether and what
type of medical care the child will receive, see In re Willmann, 24 Ohio
App.3d 191, 493 N.E.2d 1380 (1st Dist.1986), and to determine where and
with whom the child will reside.
In re E.N., 1st Dist. Hamilton No. C-170272, 2018-Ohio-3919, ¶ 18.
9 The neglect statute does not subject parents to criminal liability for failing to
provide adequate medical or surgical care or treatment solely in the practice of religious
beliefs, but the statute makes clear that this fact “does not preclude any exercise of the
authority of the state * * * or any court to ensure that medical or surgical care or treatment
2151.353(A)(1) authorizes a juvenile court to place the child under protective
supervision.10 If a juvenile court issues an order for protective supervision, the
juvenile court is permitted to “place any reasonable restrictions upon the child, the
child’s parents, guardian, or custodian, or any other person * * *.” R.C.
2151.353(D).11
is provided to a child when the child’s health requires the provision of medical or surgical
care or treatment.” R.C. 2151.03(B).
10Prior to adjudication, a juvenile court is empowered to order emergency medical
or surgical treatment “as appears to be immediately necessary for any child concerning
whom a complaint has been filed,” upon the certification of one or more reputable
practicing physicians. Juv.R. 13(C); R.C. 2151.33. Separate and apart from the abused–
dependent–neglected framework, under certain circumstances a juvenile court may also
appoint a guardian over a minor for purposes of making medical decisions for them. R.C.
2111.02, 2111.06; see also In re Guardianship of S.H., 9th Dist. Medina No. 13CA0066-
M, 2013-Ohio-4380.
11Mother does not contend that the juvenile court’s order requiring her to take
affirmative steps to schedule and cooperate with the PDA-closure procedure — as
opposed to an order restricting her from taking certain actions — was not permitted under
R.C. 2151.353(D). To the contrary, Mother’s testimony seems to indicate her agreement
to obtain the closure for I.S. if the court were to order it through protective supervision:
AGENCY COUNSEL: * * * Is there ever a point in his life where his situation
— where you would consent to the surgery?
MOTHER: I’m not gonna consent to it, but I will respect the Judge’s decision.
***
AGENCY COUNSEL: So what you’re saying is, you will never consent, but if
the Court orders it.
MOTHER: I will have to.
AGENCY COUNSEL: Okay.
MOTHER: I’m in this world right now.
Therefore, we need not decide on this appeal whether an order requiring a parent to
obtain a medical procedure for their child is a “reasonable restriction” permitted by the
protective-supervision statute or is otherwise permitted.
The parties further agree that the state can constitutionally intervene
in circumstances where a child is facing an immediately life-threatening condition,
as do we. “[I]t is well established in Ohio and in other jurisdictions, that, when
parents cannot or will not consent to potentially life-saving treatment for a minor,
then a court may appoint another to approve the procedure and thereby protect the
child’s life and health.” In re Guardianship of S.H., 9th Dist. Medina No.
13CA0066-M, 2013-Ohio-4380, ¶ 25; see also State v. Perricone, 37 N.J. 463, 474,
181 A.2d 751 (1962) (the state could act under its parens patriae authority to protect
a child’s welfare by declaring the child neglected to obtain necessary medical
treatment when it was two or three times more likely that the child would die that
very night without a blood transfusion and was at imminent risk of severe
irreversible brain injury).
This is true even where the parents’ refusal to consent to needed
medical treatment for their child is based on earnestly held religious beliefs. “[I]n
matters of medical treatment, the religious faith and beliefs of parents whose child
requires medical attention do not permit the parents to expose the child to
progressive ill health and potential death * * *.” In re J.J., 64 Ohio App.3d 806, 809,
582 N.E.2d 1138 (12th Dist.1990), citing In re Willmann, 24 Ohio App.3d 191, 493
N.E.2d 1380 (1st Dist.1986); see also Prince, 321 U.S. at 166–167, 64 S.Ct. 438, 88
L.Ed. 645 (“The right to practice religion freely does not include liberty to expose
* * * the child to * * * ill health or death.”).
Thus, Ohio courts have ordered medical interventions like
chemotherapy and surgery over parents’ objections when a minor’s condition is
immediately life-threatening. See In re Guardianship of S.H; In re Willmann at 193.
The disagreement in this case concerns when the state can
constitutionally intervene to address medical conditions that are not immediately
life threatening. Mother argues in her briefs that the state could not intervene here
because I.S.’s PDA was not “currently life-threatening.” The agency argues that it
was appropriate for the juvenile court to intervene because I.S. has “significant
medical needs” and Mother failed “to take appropriate steps to meet those needs.”
Ohio courts have approved adjudications of dependency, protective
supervision and other court-ordered dispositions in situations where a child’s
medical condition is serious but not immediately life-threatening.
For instance, a court ordered a blood transfusion for a child over the
religious objections of the parents because, even though the child was not “at death’s
door,” his blood condition had been steadily deteriorating and a transfusion could
at any moment become emergently needed to keep the child alive. In re Clark, 90
Ohio Law Abs. 21, 185 N.E.2d 128 (C.P.1962) (“[W]hether or not the situation was
emergent at the time [the movant] sought the court authorization, nevertheless it
was pregnant with emergency in that the need for blood might become imperative
at any moment * * *.”).
Moving further away from death’s door, a juvenile court adjudicated
a minor as dependent and ordered continued protective supervision related to
concerns about a parent’s mental health, despite finding that the child’s health
problems — including apparent cerebral palsy and failure to thrive requiring
hospitalization — were not immediately life-threatening. In re Stewart, 11th Dist.
Portage No. 96-P-0016, 1996 Ohio App. LEXIS 4893, 18–20 (Nov. 8, 1996). The
court of appeals affirmed, reasoning that, while the child’s medical condition was
improving, “there was more improvement to be accomplished” and the child’s
parent had resisted and refused some medical treatment for the child. Id. at 19. A
juvenile court also ordered a teenager to receive treatment for gonorrhea against the
minor’s wishes that were based on his religion. In re J.J. 64 Ohio App.3d 806, 582
N.E.2d 1138.
Moving further away still, a juvenile court awarded sole medical-
decision-making authority to one parent where the child had sinus problems and
possible sleep apnea and the other parent had canceled some medical appointments
that had been recommended by the child’s physicians. Ward v. Ward, 11th Dist.
Lake No. 97-L-165, 1998 Ohio App. LEXIS 2934.
These cases, as well as a body of cases from courts outside of our state,
make clear that courts, under certain circumstances, have the power to intervene to
order medical interventions — without running afoul of constitutional rights to
religious freedom and parenting — when the child’s medical condition is substantial
but not immediately life-threatening. See ¶ 106, 109–111 above; see also, e.g., State
v. Rogers (In re D.R.), 2001 OK CIV APP 21, 20 P.3d 166 (Okla. Civ. App.) (“It is
also well settled that the state may order medical treatment for a non-life
threatening condition, notwithstanding the objection of the parents on religious
grounds, if the treatment will, in all likelihood, temporarily or permanently solve a
substantial medical problem.”); In re Eric B., 189 Cal.App.3d 996, 235 Cal.Rptr. 22(Cal. Ct. App.1987) (ordering periodic medical monitoring to detect the possible
recurrence of a life-threatening disease, eye cancer, where there was no present
showing of cancer in the child but where there was a high probability that the cancer
would return); In re Jensen, 54 Or.App. 1, 633 P.2d 1302 (Or. Ct. App.1981)
(ordering a surgery to correct a physical deformity, notwithstanding parental
objection and a lack of immediate medical necessity); In re Karwath, 199 N.W.2d
147 (Iowa 1972) (upholding order to remove children’s adenoids and tonsils even in
the absence of “medical crisis demonstrating an immediate threat to life and limb”).
Because of the complexity of medicine and the number of variables
that can be expected to change from case to case, it may be impossible to draw a
clear line between medical conditions serious enough to permit the state’s
intervention and those that do not. We are persuaded that the correct approach is
for a court to consider the unique facts and circumstances of the case before it,
balancing the parents’ fundamental interest in directing the upbringing of the child
with the state’s interests. See In re Guardianship of S.H., 9th Dist. Medina No.
13CA0066-M, 2013-Ohio-4380, at ¶ 22 (“When the state seeks to regulate parental
decision making against the wishes of the parents, the competing interests ‘must be
determined by balancing [the] liberty interests [of the parents and child] against the
relevant state interest.’”), quoting Cruzan v. Director, Mo. Dept. of Health, 497 U.S.
261, 279, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).
This balancing test should include a consideration of all relevant
factors, including but not limited to the following: (1) the nature and seriousness of
the child’s medical condition, (2) the effectiveness of the proposed intervention,
(3) the invasiveness of the intervention and the risks to the child if the intervention
is ordered and (4) the risks to the community if the intervention is not
administered.12 See Newmark v. Williams/DCPS, 588 A.2d 1108, 1115–1118
(Del.1991) (describing balancing test and collecting cases); M.N. v. Southern Baptist
Hosp., 648 So.2d 769, 771 (Fla.App.1994) (“[C]ourts must carefully consider the
facts and circumstances of each individual case as it arises, in weighing the various
competing interests. * * * This necessitates consideration of the [parents’] interest
in making fundamental decisions regarding the care of their minor child, the state’s
interest in preserving human life, and the child’s own welfare and best interests, in
light of the severity of the child’s illness, the likelihood as to whether the proposed
treatment will be effective, the child’s chances of survival with and without such
treatment, and the invasiveness and nature of the treatment with regard to its effect
on the child.”); In re Phillip B., 92 Cal.App.3d 796, 802, 156 Cal.Rptr. 48 (1979)
12 In addition to these factors, courts have considered a child’s family’s financial
situation and the cost of medical treatment in deciding whether to intervene to assure
that a child receives treatment. See In re Guardianship of S.H. at ¶ 31. Neither Mother
nor the agency presented evidence or argument related to Mother’s financial situation or
the cost of the catheterization procedure, leading us to conclude that Mother’s objection
is not based on financial burden.
(“The state should examine the seriousness of the harm the child is suffering or the
substantial likelihood that he will suffer serious harm; the evaluation for the
treatment by the medical profession; the risks involved in medically treating the
child; and the expressed preferences of the child.”); In re J.J. 64 Ohio App.3d 806,
582 N.E.2d 1138 (noting that the state also has a legitimate interest in preventing
the spread of a contagious and potentially deadly disease and that “the right to freely
practice religion does not include liberty to expose the community to communicable
disease * * *.”).
Having set forth the framework in which we will consider the
evidence the agency presented here, we set forth the standard of review and apply
the balancing test to I.S.’s PDA.
B. The Standard of Review
A juvenile court’s adjudication of a child as neglected must be based
on clear and convincing evidence. See R.C. 2151.35(A)(1). “Clear and convincing
evidence” is that “measure of or degree of proof” that “produce[s] in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the
syllabus; In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028,
at ¶ 8. “It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as is required beyond a reasonable doubt as in criminal
cases. It does not mean clear and unequivocal.” (Emphasis deleted.) Cross at 477.
“Where the degree of proof required to sustain an issue must be clear
and convincing, a reviewing court will examine the record to determine whether the
trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.”
Id.; see also In re S.B., 8th Dist. Cuyahoga Nos. 110016 and 110017, 2021-Ohio-1091,
¶ 22 (“In determining whether a juvenile court based its decision on clear and
convincing evidence, a reviewing court will examine the record to determine
whether the trier of fact had sufficient evidence before it to satisfy the degree of
proof.”).
Once a child has been adjudicated neglected, a juvenile court may
place the child in protective supervision if it finds by a preponderance of the
evidence that protective supervision is in the child’s best interest. See In re J.D., 5th
Dist. Richland No. 12-CA-107, 2013-Ohio-2186, ¶ 29–30. We review the juvenile
court’s dispositional order placing I.S. in protective supervision for an abuse of
discretion. See id. at ¶ 31; In re Daum, 3d Dist. Auglaize No. 2-94-28, 1995 Ohio
App. LEXIS 1516, 3–7 (Mar. 31, 1995); In re Day, 12th Dist. Clermont No. CA2002-
09-073, 2003-Ohio-3544, ¶ 22. A court abuses its discretion when it exercises its
judgment in an unwarranted way. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-
Ohio-3304, 187 N.E.3d 463, ¶ 35. An abuse of discretion implies that the court’s
attitude is unreasonable, arbitrary or unconscionable. See, e.g., State v. Musleh, 8th
Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 36, citing Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
C. Clear and Convincing Evidence Supported the Juvenile Court’s
Adjudication of Neglect
The evidence in the record is that I.S.’s PDA is not immediately life-
threatening. I.S. had lived with this condition for over two years at the time of these
hearings. As of January 2022, University Hospitals’ pediatric cardiologist noted that
I.S. was “asymptomatic” as it relates to his PDA and, while we note that in context it
seems that a significant basis for that conclusion was based on Mother’s denial of
symptomology, the information Mother provided to the cardiologist is partly
corroborated by I.S.’s GAL and an agency social worker both of whom testified that
during home visits, I.S. seemed perfectly normal for his age and considering his
diagnosis of Down syndrome. The pediatric cardiologist also noted in a medical
record that as of January, I.S. had no signs or symptoms of pulmonary hypertension.
While not immediately life threatening, there was sufficient evidence
for the juvenile court to develop the firm belief or conviction that I.S.’s medical
condition was serious enough to warrant state intervention because Mother was not
taking the appropriate steps to address the condition.
I.S.’s pediatrician documented that I.S. has Down syndrome and had
experienced “profound weight loss/decline” and “significant failure to thrive.” She
documented her opinion that I.S. would not “have the ability to combat the myriad
of medical issues that are currently being left untreated.” She noted a number of
medical concerns that Mother was not adequately addressing, including the PDA.
She identified that I.S. has a “moderate sized PDA” and that the Cleveland Clinic
cardiology team opined that leaving the condition unrepaired “may result in both
ongoing inability to thrive (again as evidenced by his growth chart) but may also
result in death.” She said that she is certain that at some point in I.S.’s life the PDA
would have to be addressed. She said her particular concern regarding I.S. was that
if the PDA was contributing to the failure to thrive, it should be closed “sooner rather
than later.”
Dr. Kubiczek-Love testified that the PDA would put extra work on
I.S.’s lungs and that I.S.’s upper-airway issues were also leading to “more back
pressure” on I.S.’s lungs. She described that this added work requires more calories,
which may have been why I.S. was not growing sufficiently. “And if you can’t grow,
if you can’t gain weight, you cannot — your body cannot handle these things,” she
said; “[t]hey just simply eventually will give up.”
While Dr. Kubiczek-Love is not a cardiologist, she is a medical doctor
and testified that she consulted with the cardiology and otolaryngology teams about
I.S. and “there was an unequivocal agreement from his medical care team that this
was of grave concern.” We note that Dr. Kubiczek-Love had not seen I.S. for nearly
a year at the time of the hearing.
Both Dr. Kubiczek-Love and the agency social worker testified that
Mother had not followed up with medical specialists to monitor and address I.S.’s
significant failure to thrive and the pediatrician’s primary concerns, which extended
beyond the PDA.
We find that this evidence was sufficient to allow the juvenile court
to conclude that Mother had refused to provide proper or necessary medical or
surgical care or treatment for I.S. and that I.S. was a neglected child.
D. The Juvenile Court Did Not Abuse its Discretion by Ordering the
Catheterization Closure of I.S.’s Patent Ductus Arteriosus if I.S.
is a Candidate for the Procedure, but its Order was Unduly
Broad and Contained Arbitrary and Irrational Limits that are
Not Supported by the Evidence Presented
As we set forth above, in reviewing the juvenile court’s dispositional
order for an abuse of discretion we balance Mother’s interest in directing the
upbringing of I.S. with the state’s interest in protecting the health and wellbeing of
I.S. In doing so, we consider all relevant factors, including but not limited to the
following: (1) the nature and seriousness of the child’s medical condition, (2) the
effectiveness of the proposed intervention, (3) the invasiveness of the intervention
and the risks to the child if the intervention is ordered and (4) the risks to the
community if the intervention is not administered
1. Mother’s Fundamental Interest
Mother’s side of the scale starts with a heavy weight on it,
representing her fundamental interest in directing the upbringing of her child and
the presumption that a parent acts in their child’s best interest.
The law’s concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for
judgment required for making life’s difficult decisions. More
important, historically it has recognized that natural bonds of affection
lead parents to act in the best interests of their children.
Parham v. J.R., 442 U.S. 584, 602–603, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).
2. The Seriousness of I.S.’s Medical Condition
The more serious the medical condition for the child, the heavier the
weight that will be placed on the state’s side of the scale.
I.S.’s pediatrician documented that I.S. has Down syndrome and had
experienced “profound weight loss/decline” and “significant failure to thrive.” She
documented her opinion that I.S. would not “have the ability to combat the myriad
of medical issues that are currently being left untreated.” While University
Hospitals identified I.S.’s weight as “appropriate,” their cardiologist specifically
noted that she did not have access to I.S.’s previous recorded weights and would not
know if I.S. had lost weight.
Dr. Kubiczek-Love identified that I.S. has a “moderate sized PDA”
and that the Cleveland Clinic cardiology team opined that leaving the condition
unrepaired “may result in both ongoing inability to thrive (again as evidenced by his
growth chart) but may also result in death.” She said that she is certain that at some
point in I.S.’s life, the PDA would have to be addressed. She testified that the PDA
would put extra work on I.S.’s lungs. She said that I.S.’s upper-airway issues were
also leading to “more back pressure” on I.S.’s lungs. She described that this added
work requires more calories, which may have been why I.S. was not growing
sufficiently.
While Dr. Kubiczek-Love is not a cardiologist, she is a medical doctor
and she testified that she consulted with the cardiology and otolaryngology teams
about I.S. and “there was an unequivocal agreement from his medical care team that
this was of grave concern.”
An agency social worker testified that she also spoke with the
Cleveland Clinic cardiologist, who expressed a concern that I.S.’s PDA was “already
putting extra fluid and stress” on I.S.’s organs. The cardiologist told her that
respiratory illnesses like COVID or bronchitis would be much harder on I.S. because
of the PDA.
The pediatric cardiologist at University Hospitals similarly identified
that, while closure of PDAs is normally the recommendation, it was “particularly
important” to close I.S.’s PDA because patients with Trisomy 21 are at higher risk of
pulmonary hypertension and I.S.’s heart is already enlarged. The pediatric
cardiologist presented I.S.’s case to a team of surgeons, catheterization specialists
and cardiologists, and the consensus was that I.S. was a candidate for
catheterization closure of the PDA. That pediatric cardiologist identified the issue as
a “small PDA.”
It is undisputed that the medical teams who considered I.S.’s case at
both the Cleveland Clinic and University Hospitals recommended closure of I.S.’s
PDA, noted that it was currently putting more stress on I.S.’s lungs and left I.S. at
higher risk of chronic lung disease. The record supports the conclusion that, in the
short term, the PDA would continue to put additional stress on I.S.’s lungs, requiring
more calories and making it harder for I.S. to recover from common respiratory
illnesses. Over the long term, the risk for adverse health consequences and chronic
lung disease will only increase.
3. The Effectiveness, Invasiveness and Risks of the
Proposed Intervention
The more effective the intervention, the heavier the weight that will
be placed on the state’s side of the scale; the more invasive the procedure and the
more risks posed by the intervention, the lighter the weight placed on the state’s side
of the scale. As the Supreme Court of Delaware explained in a carefully considered
opinion:
The court must first consider the effectiveness of the treatment and
determine the child’s chances of survival with and without medical
care. * * * The court must then consider the nature of the treatments
and their effect on the child. * * * Federal and State courts have
unhesitatingly authorized medical treatment over a parent’s religious
objection when the treatment is relatively innocuous in comparison to
the dangers of withholding medical care. * * * The linchpin in all cases
discussing the ‘best interests of a child’, when a parent refuses to
authorize medical care, is an evaluation of the risk of the procedure
compared to its potential success. * * * The State’s interest in forcing a
minor to undergo medical care diminishes as the risks of treatment
increase and its benefits decrease.
Newmark, 588 A.2d at 1117; see also Rogers (In re D.R.), 2001 OK CIV APP 21, 20
P.3d 166 (“[C]ourts have held that a state cannot order that a child receive medical
treatment over religious objections of the parents when the treatment itself is very
risky, extremely invasive, toxic with many side effects, and/or offers a low chance of
success.”).
Thus, “[c]ourts have consistently authorized state intervention when
parents object to only minimally intrusive treatment which poses little or no risk to
a child’s health.” Newmark at 1120.
The agency’s case left much to be desired as it relates to these
considerations.
Dr. Kubiczek-Love could not describe the potential complications
that may occur during a catheterization-closure procedure, let alone opine on how
likely (or not) those complications are to arise. The agency did not elicit any
testimony about the long-term risks of the catheterization, if any. Mother testified
that she was told that the risks of the procedure included that the anesthesia could
kill I.S., that I.S. could “die on the table” during the procedure and that the catheter
may not be compatible with I.S.’s heart. She said that she understood that she would
have to worry for the rest of I.S.’s life about the catheter negatively affecting I.S.’s
heart or “fall[ing] to different organs” and causing “sudden death.” Although this is
lay testimony and Mother did not testify about how likely the cardiologist said these
complications may be to occur, the agency did not offer any response to Mother’s
concerns, either.
Dr. Kubiczek-Love was unable to state definitively how the surgeons
would close I.S.’s PDA through open heart surgery. More concerning, the agency
did not offer any evidence at all about the short or long-term risks posed by this
extremely invasive surgery.
The agency, in the future, should provide the juvenile court more
evidence to allow it to fully consider the risks of the proposed interventions it seeks.
That said, because we are reviewing only for an abuse of discretion and because the
juvenile court need only have found that its disposition was in I.S.’s best interest by
a preponderance of the evidence, we find that these considerations weigh in favor of
ordering the catheterization-closure procedure.
Dr. Kubiczek-Love testified that catheterization is not especially
invasive, involving only the threading of a catheter through a small incision and
placing a coil into the PDA to seal it. She testified that children with Trisomy 21
typically handle the procedure well and that medical staff would normally need to
observe I.S. overnight. She testified that a medical team comprised of physicians
from several different specialties at the Cleveland Clinic unequivocally agreed that
I.S. should undergo the procedure, which necessarily implies that the physicians
concluded that the benefits of the procedure outweigh the risks. The record reflects
that the medical team that reviewed I.S.’s case at University Hospitals agreed.
Dr. Love testified that the procedure would be completely effective
because once the PDA is closed “it’s fixed [and] it doesn’t come back.”
4. The Risk Posed to the Community by the Condition
The more risk posed to the community from non-intervention, the
heavier the weight placed on the state’s side of the scale. In re J.J. 64 Ohio App.3d
806, 582 N.E.2d 1138 (noting that the state has a legitimate interest in preventing
the spread of a contagious and potentially deadly disease and that “the right to freely
practice religion does not include liberty to expose the community to communicable
disease”); see also Yoder, 406 U.S. 205, 233–234, 92 S.Ct. 1526, 32 L.Ed.2d 15 (state
may act “if it appears that parental decisions will jeopardize the health or safety of
the child, or have a potential for significant social burdens”).
Here, the agency offered no evidence that I.S.’s PDA will pose a risk
to the community. Thus, we place no additional weight on the state’s side of the
scale based on risk to the community.
5. Balancing the Factors
Under the unique circumstances and record of this case and after
careful consideration, we find that it was not an abuse of discretion for the juvenile
court to order closure of I.S.’s PDA through catheterization if I.S. remains a
candidate for the procedure. Mother has a strong interest in making reasonable
medical decisions for I.S. and the evidence reflects that she is a concerned mother
who is very knowledgeable about I.S.’s medical conditions. But, in refusing to
consent to the catheterization closure of I.S.’s PDA, Mother is subjecting I.S. to
progressive ill health and significant risk when there is a minimally invasive
intervention that would completely resolve the condition. Physicians from several
specialties at two different hospital systems opined on the significant negative
effects and risks of leaving I.S.’s PDA uncorrected and recommended catheterization
closure. I.S.’s guardian ad litem also advocated for the procedure as being in I.S.’s
best interest.
The juvenile court did not abuse its discretion in ordering the
procedure. We, therefore, affirm the juvenile court’s dispositional order requiring
Mother, within 15 days, to schedule and cooperate in preprocedure appointments to
ensure that I.S. remains a candidate for closure of the PDA through catheterization
and, if so, to schedule and cooperate in the closure procedure and any post-
procedure appointments and follow-up recommended by the physicians involved in
I.S.’s care.
The juvenile court’s order set forth a deadline for the procedure that
is not reasonable in light of the evidence presented. The trial court ordered that I.S.
undergo a procedure to close the PDA within 60 days, despite the fact that I.S. has
not been seen by Dr. Kubiczek-Love for over a year, where Dr. Kubiczek-Love could
not definitively say whether I.S. was even a candidate for catheterization closure at
this time and where the cardiology team at the Cleveland Clinic reported that I.S.
would have to undergo additional testing before undergoing the procedure. Setting
a date certain by which I.S. must undergo the procedure was an abuse of discretion,
especially when coupled with the juvenile court’s allowance of open heart surgery as
a closure option.13
We vacate the juvenile court’s requirement that the final closure
procedure be completed within 60 days and remand with instructions to issue a new
13 Under the juvenile court’s order, if I.S. could not be scheduled for catheterization
within 60 days but could be scheduled for open heart surgery by that deadline, the agency
and I.S.’s care team would have been required to perform open heart surgery or seek a
further order of the court.
journal entry requiring that the closure procedure occur at the earliest opportunity
recommended by I.S.’s treating physicians if the preprocedure appointments
confirm that I.S. is a candidate for closure through catheterization.
We also conclude that the juvenile court’s order is unreasonably
broad in that it does not limit the PDA procedure to the minimally invasive
catheterization but seemingly would allow for I.S. to undergo open heart surgery.
Allowing open heart surgery, at this point and based on this evidence, was an abuse
of discretion. The agency presented no evidence about the risks of this procedure or
what I.S.’s recovery would entail. And there is a much less invasive alternative —
catheterization — that seems to be readily available. We vacate the juvenile court’s
order to the extent that it allows for I.S.’s PDA closure to be accomplished through
open heart surgery. If the precatheterization appointments reveal that I.S. is not a
candidate for catheterization at this time, and if the agency still believes that open
heart surgery is necessary, the agency can seek the intervention in the future. We
would expect that a reasoned consideration of open heart surgery would include at
least a consideration of why I.S. is not a candidate for catheterization at this time,
an opinion from a cardiologist about the advisability of open heart surgery and the
possibility of taking other steps to make I.S. a candidate for catheterization versus
the risks of delaying the closure procedure.
We, therefore, vacate the juvenile court’s allowance of the closure
procedure to occur through open heart surgery. Again, if I.S. is not a candidate for
catheterization closure, the agency can seek this surgical intervention in the future.
III. Conclusion
We affirm the juvenile court’s adjudication of I.S. as a neglected child.
We affirm the juvenile court’s placement of I.S. under protective
supervision.
We affirm the juvenile court’s dispositional orders — unchallenged
by Mother below or on appeal — requiring Mother to (1) obtain a primary-care
physician for I.S., provide the agency with contact information and a release of
information and schedule a well visit with the physician for I.S. and (2) reschedule
I.S.’s sleep study and comply with all the follow-through appointments or
recommendations for this study as well as with the ordered endocrinology
appointments.
We affirm the juvenile court’s dispositional order requiring Mother
to schedule, within 15 days, and cooperate in preprocedure appointments to ensure
that I.S. is a candidate for closure of the PDA through catheterization and, if so, to
schedule and cooperate in the closure procedure and any post-procedure
appointments and follow-up recommended by the physicians involved in I.S.’s care.
We vacate the juvenile court’s requirement that the final closure
procedure be completed within 60 days and remand with instructions to issue a new
journal entry requiring that the closure procedure occur at the earliest opportunity
recommended by I.S.’s treating physicians if the preprocedure appointments
confirm that I.S. is a candidate for closure through catheterization.
We vacate the juvenile court’s allowance of the closure procedure to
occur through open heart surgery.
It is ordered that the appellee recover from the appellant the costs herein
taxed.
The court finds that there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)
EILEEN T. GALLAGHER, J., CONCURRING IN PART AND DISSENTING IN
PART:
I concur with the majority’s conclusion that the juvenile court acted
within its discretion to order closure of I.S.’s PDA through catheterization. And I
agree that the 60-day deadline to complete the procedure was unreasonable given
that Dr. Kubiczek-Love had not seen I.S. for over one year and there was no evidence
as to whether I.S. was still a candidate for catheterization closure.
I dissent, however, from the majority’s decision to entirely vacate the
juvenile court’s judgment allowing closure of the PDA through open-heart surgery.
I am concerned that if catheterization is no longer a viable option by the time I.S. is
again evaluated for it, and there is no order allowing for open-heart surgery, I.S.’s
life may be in danger during the time it takes the agency to institute new proceedings
to obtain a court order allowing the surgery. Instead, I would require that the
juvenile court retain jurisdiction to weigh the parties’ competing interests with
respect to the open-heart surgery in the event that I.S.’s treating physicians conclude
that the catheterization cannot be done. At that point, the juvenile court could
quickly schedule a hearing and require the Agency to present medical evidence in
the form of either expert testimony or an expert report, explaining the risks and
benefits of open-heart surgery for I.S.
I agree with the majority that the juvenile court abused its discretion
in authorizing the open-heart surgery without sufficient expert medical evidence
explaining the risks and benefits of the procedure for I.S. But I believe the safest
approach would be to retain jurisdiction to make that decision in a timely manner
based on expert evidence if the less invasive procedure is no longer an option.