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Published: Friday, 12/31/2004

Top court keeps baby on life support

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - The Ohio Supreme Court yesterday refused to permit the removal of a comatose baby from life support against the wishes of his parents, one of whom could face murder charges if the infant dies.

In a case that has sparked national debate, the court's majority determined that parental rights are paramount and Summit County Probate Court erred when it appointed a temporary guardian to make life-and-death decisions for brain-damaged Aiden Stein of Mansfield.

"The heartbreak and tragedy in this case cannot be overstated," Justice Evelyn Lundberg Stratton wrote. "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."

Linda Kersker, Akron attorney for court-appointed guardian Linda Kaforey, said no decision has been made whether to seek a further appeal before the U.S. Supreme Court.

"This opinion in no way addresses the baby's best interests," she said. "It is drawn on narrow statutory legal grounds ... Aiden's condition remains irreversible. He will remain in a permanent vegetative state for as long as he lives."

The parents' attorney, Edward P. Markovich, could not be reached for comment.

On March 15, then 5-month-old Aiden was flown by emergency helicopter to Akron Children's Hospital, where doctors determined he was permanently brain-damaged. Doctors later testified they believed Aiden's injuries were caused by shaken-baby syndrome.

The boy's father, Matthew Stein, reportedly alone with the infant when the injuries occurred, is a suspect, but he has not been charged. Arica Heimlich, his live-in fiancee and Aiden's mother, has stood by Mr. Stein, prompting court appointment of the guardian.

"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 rights - the rights of parents in their relationship with their children," Chief Justice Thomas Moyer wrote.

He disagreed with the majority that the probate court had no standing to appoint a guardian to make life-and-death decisions.

But he said he would have overturned the case anyway and sent it back to juvenile court in Richland County, where the parents live, to answer the question of whether the parents' rights were being violated.

The dissenting vote in the 6-1 decision, Justice Maureen O'Connor, wrote that the probate court had "overwhelming evidence" of physical abuse.

"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," she wrote. "The probate court, following a finding that the parents are unsuitable, stands in the shoes of the parents."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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