MOYER, C.J., concurring in part and dissenting in part.

{¶ 46} We live in a technological age in which the dividing line between life and death is sometimes a fine one. Aiden Stein "lives" because his heart is beating and his body is capable of sustaining itself when provided nutrition, water, and technological assistance. We are told that every area of his brain, however, has been significantly damaged except for the "very deep center of the brain stem which is the very primitive area of the brain." The clear consensus of medical opinion is that Aiden's ability to relate to people and events around him no longer exists — and will never return. He is described as being in a persistent vegetative state with no chance for recovery. The trial court described Aiden's existence as "not life but a cruel shadow of life."

{¶ 47} Ethical people of good will disagree as to what is in the best interest of a person under such circumstances. I agree with the majority that the ultimate inquiry before us is not whether life-supporting treatment should be continued. Rather, the ultimate question we must resolve is whether Aiden's parents retain the legal right to make that decision, even though one parent is suspected of (but not charged with) causing Aiden's injuries and the other believes in the father's innocence. Or did the state, acting through the probate court and in light of the accusations against one or both of Aiden's parents, validly vest a guardian with the limited authority to make the decision whether life-supporting treatment should be continued? The issue is Solomonic.

{¶ 48} As does the majority, I acknowledge that the right of natural parents to direct the care and upbringing of a child is a fundamental liberty interest of constitutional dimension. Troxel v. Granville (2000), 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49. However, that authority is not unlimited. The state clearly has parens patriae power over minors in certain circumstances.

{¶ 49} Ohio courts do not, however, have inherent jurisdiction to determine a child's best interests, as they possess only the jurisdiction that the General Assembly has expressly conferred upon them. See Section 4(B), Article IV of the Ohio Constitution; Seventh Urban, Inc. v. Univ. Circle Property Dev., Inc. (1981), 67 Ohio St.2d 19, 22, 21 O.O.3d 12, 423 N.E.2d 1070. Thus the question remains whether Ohio's statutory scheme grants the trial court the authority to terminate Aiden's life support contrary to the will of his parents.

{¶ 50} The trial court proceeded under the authority of R.C. 2111.02 and 2111.06. R.C. 2111.02 states:

{¶ 51} "(A) When found necessary, the probate court * * * shall appoint * * * a guardian of the person, the estate, or both, of a minor * * *.

{¶ 52} "* * *

{¶ 53} "(B)(1) If the probate court finds it to be in the best interest of [a] * * * minor, it may appoint * * * on its own motion or on application by an interested party, a limited guardian with specific limited powers. * * * [T]he order of appointment and letters of authority of a limited guardian shall state the reasons for, and specify the limited powers of, the guardian. The court may appoint a limited guardian for a definite or indefinite period. * * *

{¶ 54} "(C) Prior to the appointment of a * * * limited guardian under division (A) or (B)(1) of this section, the court shall conduct a hearing on the matter of the appointment." (Emphasis added.)

{¶ 55} R.C. 2111.06 provides:

{¶ 56} "A guardian of the person of a minor shall be appointed as to a minor having neither father nor mother, or whose parents are unsuitable persons to have the custody and tuition of such minor, or whose interests, in the opinion of the court, will be promoted thereby. A guardian of the person shall have the custody and provide for the maintenance of the ward, and if the ward is a minor such guardian shall also provide for the education of such ward." (Emphasis added.)

{¶ 57} R.C. 2111.02 and 2111.06 vest the probate courts of Ohio with broad power. Upon a mere finding that it is in the "best interest of a * * * minor," R.C. 2111.02(B)(1) authorizes a probate court to supplant a parent's rights and responsibilities through appointment of a limited guardian. Similarly, R.C. 2111.06 authorizes a probate court to appoint a guardian of a minor not only where the court finds the child's natural parents to be "unsuitable persons" but also upon the mere finding that the child's "interests * * * will be promoted thereby."

{¶ 58} These conclusory statutory criteria stand in stark contrast to the comprehensive statutory scheme set forth in R.C. Chapter 2151 governing the adjudication of children as dependent, neglected, or abused, and ultimately, the permanent termination of a natural parent's legal rights. Indeed, where parents are believed to be unfit, R.C. Chapter 2151 is more commonly invoked to accomplish transfer of responsibility for children from natural parents to the state than is the probate code.

{¶ 59} Nevertheless, R.C. 2111.02 clearly authorizes a probate court to appoint a limited guardian where the court finds it to be in the child's best interests to do so. Nothing in the text of the statute precludes the court from authorizing a limited guardian to direct a child's medical provider to terminate life support.

{¶ 60} I do not accept the majority's premise that a decision to withdraw life-supporting treatments is something other than a medical decision. Nor do I believe that a decision to withdraw life-supporting treatments is equivalent to the termination of the parent-child relationship. That relationship is legal in nature, and while the death of either clearly changes it, the relationship survives death. See, for example, the statute of descent and distribution, R.C. 2105.06(F), providing that a surviving parent is entitled to inherit from the estate of a deceased child not survived by a spouse or his or her own children.

{¶ 61} In short, I believe that the General Assembly has authorized probate courts to enter orders like that made by the Probate Court of Summit County.

{¶ 62} I believe that the question whether R.C. 2111.02 and 2111.06 were constitutionally applied to Aiden's parents is a separate, serious, and legitimate one. The court of appeals refused to address it, observing that the parents first raised constitutional objections "during their closing argument at the conclusion of a four-day hearing, when it was clearly too late for the trial court to correct the alleged error."

{¶ 63} I disagree. It is true that counsel's advocacy was less than artful and that he did not specifically argue that application of the guardianship statutes to Aiden's parents would be unconstitutional. I cannot subscribe to the premise, however, that constitutional issues were waived because not raised "at a time when such error could have been avoided or corrected by the trial court." State v. Childs (1968), 14 Ohio St.2d 56, 43 O.O.2d 119, 236 N.E.2d 545, paragraph three of the syllabus.

{¶ 64} Counsel for Aiden's parents stated at closing argument:

{¶ 65} "The issue in this case is not merely jurisdiction * * *. This court's primary jurisdiction over guardianship, your Honor, is a mere footnote to the fundamental interest in life, liberty and property which is the core constitutional issue in this case.

{¶ 66} "* * *

{¶ 67} "This constitutional issue is — partakes of the First Amendment, your Honor, the associative right of the parent, the Fifth Amendment in the depravation [sic] of a human life, and most particularly the Fourteenth Amendment through the state's participation through the person of this honorable court in making this decision. And, your Honor, I do not question the jurisdiction of the Court, I simply request that the fundamental due process to be accorded my clients be permitted to proceed just as this application for a best interest substitute of judgment has been permitted to proceed.

{¶ 68} "* * *

{¶ 69} "And respectfully, your Honor, * * * I'm asking this Court to reconsider its own opinion in [a prior analogous case] and that's because of the constitutional issues presented * * *.

{¶ 70} "* * *

{¶ 71} "My clients have * * * not been permitted their procedural due process and substantive due process rights before the state of Ohio."

{¶ 72} In my view, these comments adequately preserved constitutional issues for appellate review. The trial court clearly was put on notice that Aiden's parents believed that their constitutional rights were in jeopardy before the trial court granted the guardianship application. The fact that the written trial court decision granting the guardianship did not address these issues does not mean that they were not raised. Nor did they waive their constitutional rights by stipulating that a guardian would be appointed to make medical decisions not involving the termination of life support. I note, moreover, that "[e]ven where waiver is clear, this court reserves the right to consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it." (Emphasis added.) In re M.D. (1988), 38 Ohio St.3d 149, 527 N.E.2d 286, at syllabus (reviewing the constitutionality of a statute as applied even though the constitutional challenge was presented at the trial court "in general terms"). Id. at 151, 527 N.E.2d 286.

{¶ 73} In Troxel, the Supreme Court of the United States reviewed a Washington visitation statute invoked by grandparents Jenifer and Gary Troxel. The statute permitted "`[a]ny person' to petition a superior court for visitation rights `at any time,' and authorize[d] that court to grant such visitation rights whenever `visitation may serve the best interest of the child.'" Id., 530 U.S. at 60, 120 S.Ct. 2054, 147 L.Ed.2d 49. The children's mother did not object to a grant of some visitation, but asked the court to order only one day of visitation per month, with no overnight stay. The superior court, however, entered a visitation order allowing the grandparents more extensive visitation based on its conclusion that more extensive visitation was in the children's best interests.

{¶ 74} Justice O'Connor of the Supreme Court of the United States concluded, in a plurality opinion, that, as applied, the "breathtakingly broad" Washington statute exceeded the bounds of the Due Process Clause. Id. at 67, 120 S.Ct. 2054, 147 L.Ed.2d 49. She concluded that the Washington trial court had "directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child," and specifically noted that the grandparents "did not allege, and no court has found, that [the mother] was an unfit parent." Id. at 69 and 68, 120 S.Ct. 2054, 147 L.Ed.2d 49. The latter aspect of the case was characterized as "important." Id. at 68, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 75} Notably, in the case at bar, allegations of unfitness have been made against one, if not both, of Aiden's parents. The trial court did not, however, find that either parent was responsible for Aiden's injuries, only that they may have been responsible.

{¶ 76} After Troxel it is unclear whether, and under what circumstances, a state may constitutionally override a fit parent's decision as to the care or upbringing of a child based on the state's disagreement with the parent's conclusion as to a child's best interests. ("Our cases, it is true, have not set out exact metes and bounds to the protected interest of a parent in the relationship with his child." Id., 530 U.S. at 78, 120 S.Ct. 2054, 147 L.Ed.2d 49 [Souter, J., concurring in judgment].) It seems clear, however, that "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made," id. at 72-73, 120 S.Ct. 2054, 147 L.Ed.2d 49, and that a court must accord "special weight" to a fit parent's determination of the child's best interests, id. at 70, 120 S.Ct. 2054, 147 L.Ed.2d 49.

{¶ 77} It is not overly dramatic to observe that this case presents a life-and-death issue and implicates one of our society's most precious and fundamental interests — the rights of parents in their relationship with their children. For this reason I believe that this cause should be reversed and remanded to the court of appeals with instructions that it consider the constitutional implications of the actions of the trial court.

PFEIFER, J., concurring in part and dissenting in part.

{¶ 78} I concur with the majority's holding ordering the probate court to terminate the guardian's authority to withdraw life support, but for a different reason. I believe that the probate court lacked jurisdiction to grant any authority at all to the guardian in this case. I cannot agree that Aiden's hospitalization for less than one month before the first hearing in Summit County gave jurisdiction to the probate court of that county. Pursuant to R.C. 2111.02(A), the person for whom a guardian is appointed must be "a resident of the county or [have] a legal settlement in the county." We set a dangerous precedent when we hold that hospitalization establishes settlement for purposes of probate court jurisdiction. That holding will affect not just babies, but people at the other end of life. Elderly citizens with substantial assets could become victims of people with less than admirable economic motives trying to establish guardianship outside the ward's home county.

{¶ 79} Here, Aiden's fate should be decided in Richland County. Ohioans do not abandon their homes just by being in the hospital somewhere else.

O'CONNOR, J., dissenting.

{¶ 80} Because the majority focuses its attention on two chapters of the Revised Code that are immaterial to this case (Chapters 2133 and 2151) and relies heavily on public policy arguments to usurp the legislative grant of authority to the probate court, I must respectfully dissent.

{¶ 81} The majority gives precedence to the rights of the parents over the best interests of the child by reversing the judgment of the court of appeals. In the initial part of the opinion, the majority claims that this case solely involves the "narrow legal issue of whether the Summit County Probate Court exceeded its statutory authority." It further correctly states that this case "does not require us to decide whether it would be in Aiden's best interest to have life-supporting treatments withdrawn and comfort care administered or whether the constitutional rights of his parents were violated."

{¶ 82} Yet, when addressing the topic of guardianship, the majority states, "`[A] parent's desire for and right to "the companionship, care, custody and management of his or her children" is an important interest that "undeniably warrants deference and, absent a powerful countervailing interest, protection,"'" quoting Lassiter v. Dept. of Social Servs. (1981), 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640, and Stanley v. Illinois (1971), 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551. Later, the majority reiterates its focus on the fundamental rights of the parent when citing Santosky v. Kramer (1982), 455 U.S. 745, 753-754, 102 S.Ct. 1388, 71 L.Ed.2d 599, which addresses the parents' fundamental rights in the care, custody, and management of their children and the provision of fundamentally fair procedures when the state moves to intervene. This is a discussion of the very parental constitutional right the majority declared irrelevant.

{¶ 83} It is fundamental that R.C. 2133.08 applies only to adults and therefore its dictates have no relevance to the case at hand. The bill that enacted this statute also modified the Durable Power of Attorney for Health Care Act, R.C. 1337.11 et seq., and stated, "The General Assembly declares that its several intents in enacting Amended Substitute Senate Bill No. 13 of the 118th General Assembly [the bill that first enacted the Durable Power for Health Care Act] did not include any intent to affect the ability of competent adults or the guardians of incompetents or minors to make informed health care decisions for themselves or their wards." (Emphasis added.) Section 5 of Am. Sub. S.B. No. 1, 144 Ohio Laws, Part I, 64. R.C. Chapter 2133 establishes Ohio's do-not-resuscitate law for adults and complements the durable power of attorney for health care. Each expressly applies only to adults. R.C. 1337.12(A)(1); 2133.08(A)(1). Both involve end-of-life care for adults. The General Assembly expressly stated when enacting R.C. Chapter 2133 that provisions relating to terminally ill adults do not affect the ability of the guardian of a minor to make informed medical decisions. Aiden is an infant. Accordingly, R.C. 2133.08 does not affect this case.

{¶ 84} The essence of this probate case is that the actions of the parents necessitated the appointment of a guardian. R.C. 2111.06 provides that "[a] guardian of the person of a minor shall be appointed as to a minor * * * whose parents are unsuitable persons to have the custody and tuition of such minor." The nature of the injuries to Aiden and the circumstances stated in the majority opinion clearly support the probate court's finding that the parents are "unsuitable persons."

{¶ 85} R.C. 2111.50(F) unquestionably authorizes the probate court to make decisions regarding "medical or surgical care or treatment of incompetents or minors subject to guardianship, [for] the probate court has full parens patriae powers unless otherwise provided by a section of the Revised Code." The decision to remove life-sustaining measures is such a decision. See In re Guardianship of Crum (1991), 61 Ohio Misc.2d 596, 580 N.E.2d 876 (probate court has power under R.C. 2111.50 to authorize guardian of a minor to refuse or terminate life-sustaining care of ward).

{¶ 86} The majority interjects a layer of procedure that is not mandated by the legislature. It is not a prerequisite that the parents' rights be terminated before the probate court can act. The termination of parental rights is governed by R.C. Chapter 2151 and is wholly independent of the appointment of a guardian. Parental rights cases are adjudicated by juvenile courts. See, e.g., R.C. 2151.414. Adjudicating the necessity of a guardianship is the province of probate courts. See R.C. 2111.06. While in the case of a minor, the powers of the courts may overlap, the two courts serve different roles. A probate court may appoint a guardian over decisions of the person and the estate where the parents are "unsuitable" to serve as guardian. R.C. 2111.06. The probate court also has the power to appoint a limited guardian where it serves the best interest of the ward and where only certain aspects of the ward's person or estate need to be safeguarded. See R.C. 2111.02(B)(1). In contrast, a juvenile court may terminate parental rights where a child is abused, dependent, or neglected. R.C. 2151.353. The role of the juvenile court then is to appoint a person or entity to raise the child in a suitable environment. Id. A juvenile court's decision may result in temporary custody or permanent custody, but it cannot be fragmentary. Disputes arising from the overlapping power of the courts are not new. See Hoffman v. Hoffman (1864), 15 Ohio St. 427, 1864 WL 51 (a probate court cannot by letters of guardianship interfere with a child custody adjudication of another court). Juvenile courts are equally bound by prior probate rulings. In re Miller (1986), 33 Ohio App.3d 224, 515 N.E.2d 635 (where a probate court appoints a guardian for a minor child, the probate court retains continuing and exclusive jurisdiction over the ward and the guardian; thus, a juvenile court is without jurisdiction to grant custody of the ward to another person until the guardianship has been terminated). Here, the mother and father consented, in effect, to the Richland County Juvenile Court's finding that Aiden was a "dependent/abused" child and the grant of temporary custody of Aiden to Richland County Children Services Board ("RCCSB"). According to the court below, RCCSB moved for an order to withdraw life-sustaining treatment from Aiden, and the juvenile court responded by ordering, "All decisions regarding medical care for Aiden Hemlich [sic], minor child, shall be made jointly by [RCCSB] and the child's parents, upon the advice of the child's physicians." However, the juvenile court stated that a court of competent jurisdiction could supersede the medical authority granted by it. Thus, the juvenile court found that it is without jurisdiction over this case because it lacks authority to grant the requested relief. This is a guardianship case. Jurisdiction was properly in the hands of the probate court.

{¶ 87} The crux of the majority's argument that the probate court lacked the authority to permit the guardian to withdraw life-supporting treatment is a statement that this decision is not a medical one. The finding that the withdrawal of life-supporting treatment goes beyond the scope of a medical decision is stated without any support whatsoever. To the contrary, the decision that a child-patient has permanently lost high-level brain function and should be allowed to die is a decision relating to medical care or treatment, and as such must be made with the best interests of the child-patient foremost in mind. See In re Guardianship of Myers (1993), 62 Ohio Misc.2d 763, 773, 610 N.E.2d 663; In re Guardianship of Crum (1991), 61 Ohio Misc.2d 596, 580 N.E.2d 876; 77 Corpus Juris Secundum (1994) 552, Right to Die, Section 5. The act of withdrawing life-support mechanisms and administering comfort care will permit Aiden to die, not from an overt act of the medical professionals but from the natural consequences of the severe injuries inflicted upon this child. The majority acknowledges as much.

{¶ 88} The overwhelming medical expert testimony agreed on the nature of the injuries, the manner in which they were inflicted, and the prognosis for the child. The probate court and the guardian acted within the powers granted them under R.C. 2111.50 when they decided to withdraw life-sustaining treatment from Aiden.

{¶ 89} The majority concludes, "The fact that a child is in a permanent vegetative state is not sufficient reason to deny parental rights, absent evidence of abuse or neglect. The right to withdraw life-supporting treatment for a child remains with the child's parents until the rights are permanently terminated." As previously discussed, this appeal did not emanate from proceedings in juvenile court. A discussion of parental rights is misplaced.

{¶ 90} The issue we are presented with is whether the probate court abused its discretion under R.C. Chapter 2111. Here the probate court was faced with overwhelming evidence of severe physical abuse by one parent and the other parent's allegiance to the alleged abusing parent. The evidence supporting the proposition that the father caused Aiden's injury is sufficient to find the father unfit. The mother's ability to decide what is in Aiden's best interest has been hopelessly compromised by her knowledge that when Aiden dies, the father will be charged with murder. Her conflict of interest is glaringly obvious. A conflict of interest may justify the appointment of a guardian. In re Guardianship of Muehrcke, Cuyahoga App. No. 81353, 2003-Ohio-176, 2003 WL 132422. Unfortunately, the majority imagines future scenarios that are irrelevant to the case at hand. To presume that Aiden's mother will suddenly change course to do anything but support the father and align with what she perceives as best for Aiden is ludicrous. The probate court, following a finding that the parents are unsuitable, stands in the shoes of the parents. That is all that is required when decisions, including medical decisions, have to be made for children whose parents are not suitable to do so.

{¶ 91} The conclusion that withdrawing life support would be the functional equivalent of a permanent termination of parental rights again focuses on the unnecessary. As discussed above, the probate court has the statutory authority to appoint a guardian for the purpose it did in this case. The majority concedes this point but reasons that until parental rights are terminated, the appointment of a guardian with "authority to withdraw life-supporting treatment for Aiden is premature." The only provision in the Revised Code that can be read to grant authority to appoint such a guardian over a child is R.C. 2111.50. So the majority must agree that the probate court is the court to exercise such authority.

{¶ 92} The majority finds this authority limited by the United States Supreme Court's pronouncement, "`When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures,'" quoting Santosky v. Kramer, 455 U.S. at 754, 102 S.Ct. 1388, 71 L.Ed.2d 599. The majority finds this case to be analogous to the termination of parental rights because the end result of the guardianship will be Aiden's death. Even if the analogy were accurate, the majority fails to state how the procedure provided for under R.C. Chapter 2111 is not fundamentally fair. In any event, the analogy is immaterial and confuses the issue. The probate court is not deciding whether Aiden should be permanently removed from his parents. This is not a custody case. It should not be treated as one.

{¶ 93} The probate court's appointment of a medical guardian is authorized under R.C. Chapter 2111. R.C. 2111.50(F) authorizes the court and guardian to withdraw life support. R.C. Chapters 2133 and 2151 are not implicated. They do not control or even inform this decision. Because the probate court acted within its statutory authority when appointing the limited guardian, I vote to affirm its decision and that of the court of appeals.