by worriedmom and worrieddad

4thWaveNow contributor Worriedmom has practiced civil litigation for many years in federal and state courts. She is joined in this Part 2 legal analysis of the Cincinnati custody case by Worrieddad, also a civil litigator and partner in his law firm. Part 1 (which includes text of the court decision itself) can be found here.

 In re JNS, the Cincinnati “transgender teenager” custody case, has occasioned a great deal of alternately gleeful and fearful reaction. As noted in our previous commentary, however, it is unlikely to uphold expectations on either side.

In view of the concern that some of our readers may have as to the potential application of this case to their personal situations, we thought it might be helpful to answer some of the questions raised by the case and to explore it in a bit more detail (usual caveat here that this is solely for informational purposes and not legal advice, for which you should always seek your own counsel).

Does this case cover my state?

There are three parts to the answer: first, custody and family law matters are classic examples of areas that are largely up to the individual states to decide. In other words, this case was governed by Ohio state law. Unless you live in Ohio, the case is not binding precedent for the courts in your state. Second, custody cases tend to be what we call “fact-specific.” Courts try to come up with the best way of handling the particular child and family’s circumstances: and as those will vary tremendously from family to family, even in Ohio the case may be of limited application. Third, although federal statutory and constitutional law protections and limitations are germane in certain transgender/custody cases, In re JNS did not decide any such issues.

How did the case get before the judge in the first place?

This is worth exploring in some detail, again because although it raises the specter of unbridled governmental interference in intimate family matters, it also appears that it treats an unusual situation (one unlikely to confront most of our readers).

The matter apparently began in November of 2016, when JNS emailed a crisis hotline, claiming that “one of his parents had told him to kill himself” and that his parents had refused to obtain counseling that was not “Christian-based.” (Note that some of these details are taken from news coverage of the case rather than the court papers themselves – a highly preferable source but one that is not currently available.) At some point prior to the November email, JNS had been hospitalized at the Cincinnati Children’s Hospital Medical Center (“Children’s Hospital”) for at least four weeks. (Id.) Clearly, then, JNS had been in great distress, in that a four-week psychiatric hospitalization is comparatively rare, especially for a teenager.

After the hotline email, in February of 2017, the Hamilton County Job & Family Services (“HCJFS”) stepped in and filed a petition to be granted temporary custody of JNS. Significantly, to avoid the necessity of a hearing (which would, of course, have been emotionally difficult for both JNS and JNS’ parents), the parents apparently agreed “to abide by a pre-existing ‘Safety Plan,’” in which JNS resided with JNS’ maternal grandparents as JNS had been doing prior to this hearing. At this February 2017 hearing, and as is customary in these types of contested matters, the court appointed a guardian ad litem (“GAL”) to represent JNS’ interests before the court.

Did the parents “lose custody” of JNS?

Yes (with qualifications). After the February 2017 hearing, the parties returned to court in April of 2017. At that time, the parents agreed JNS would be placed in the temporary custody of HCJFS and it was ordered that JNS would remain in the grandparents’ physical custody. All the parties agreed on the “permanency goal” that the grandparents would “guide [JNS] to adulthood.” The parents also declined “reunification services,” which would have prepared the parents and JNS for JNS to return and live at home.

Following that hearing, the Children’s Hospital filed “case plans” indicating its desire to initiate hormone therapy with JNS. However, in the court’s words, Children’s Hospital then “inexplicably” withdrew these case plans, and the matter proceeded to magistrate review for determination of the legal custody. In August of 2017, HCJFS filed a petition, seeking to terminate its own temporary custody of JNS, and to place legal custody with the maternal grandparents. In October of 2017, the magistrate conducted an “in camera” (confidential) interview with JNS; this was then followed in December of 2017 with petitions for legal custody filed on behalf of the maternal grandparents. Three days of trial ensued (in and of itself, an extraordinary expenditure of legal energy and judicial resources).

It is noteworthy that at every point during the proceeding, JNS’ parents apparently agreed that physical custody of JNS should remain with the grandparents (this was JNS’ wish as well). JNS’ GAL also agreed that the grandparents should have legal custody. This is significant because the recommendation of the GAL, as the “eyes and ears of the court,” typically carries great weight.

At the end of the proceedings, in the final decision entered on the matter, the court transferred legal custody to JNS’ grandparents. The grandparents are now empowered to consent to a name change for JNS and are obligated to provide medical insurance coverage.

The most significant issue, and the one that presumably concerns most parents, is the question of who will make medical decisions on JNS’ behalf. As noted, while the court ordered that the grandparents will be entitled to make medical decisions, the fact that it placed the condition of an independent evaluation on the grant, together with the fact that JNS will shortly turn 18 years of age, in practical terms means that the only person making medical decisions for JNS will be JNS. Moreover, the court’s decision primarily reflected the reality on the ground, that JNS had been living with the grandparents, by the consent of all concerned, and that JNS was never (while a minor, at any rate) going to return to the parents’ home. Practically speaking, during the short pendency before JNS turns 18, legal custody would either have stayed with HCJFS, or gone to the grandparents.

Did the court endorse medical transition for JNS and/or other young people?

Absolutely not. In fact, the court noted the “surprising lack of definitive clinical study” to support the advisability of any given course of treatment for gender dysphoria. The court also mentioned with “concern” that “100% of patients presenting to the Children’s Hospital are apparently considered appropriate candidates for gender treatment.” Interestingly, the court seemed to indicate some skepticism when it stated that after JNS was referred to the Children’s Hospital for treatment of anxiety and depression, the diagnosis “rather quickly” became one of gender dysphoria, and that the parents were “legitimately surprised and confused” at that sequence of events.

What about suicide?

This case is also significant for what it says about the “suicide issue.” The court did not appear pleased about the parties’ conflicting claims in this regard, stating that JNS’ medical records, as of the end of January 2017, indicated that suicide was not a factor. However, the “very next week,” when HCJFS first moved for custody of JNS on an emergency basis, it was claimed that JNS was, in fact, suicidal – and then more medical records, dated the week after that, stated that JNS was not. The court was understandably aggrieved by this apparent lack of consistency (if not transparency).

Interestingly, the court noted the potential future use of threats of suicidality in such proceedings, questioning whether minors might thereby be able to obtain desired medical procedures such as rhinoplasties or “similar cosmetic surgery.” The court also indicated that it should not permit such threats to govern the disposition of cases before it.

What is the likely lasting impact of In re: JNS?

We do not believe that the case has (or should have) any substantial effect for medical practitioners or parents. As discussed above, the court did not endorse or validate medical transition; in effect all it did was delay the process for a few months until JNS turns 18 and will be the sole arbiter of JNS’ decisions. It was not before the court to make any decisions about medical gender treatment that extend anywhere past the extreme facts and circumstances relating to JNS and JNS’ unfortunate family situation. Moreover, nothing in this case stands for the proposition that either obtaining, or refusing to obtain, “gender confirmation” treatment for a child is abuse, reportable or otherwise.

Although the court did not mention it, at present there is no “bright line” test for when a young person becomes legally competent to make his or her own medical decisions. Courts are gradually recognizing that children under the age of 18, who “demonstrate maturity and competence,” should have a voice in making their own medical decisions. It is, therefore, unsurprising, that the court weighted JNS’ wishes in determining JNS’ own “best interests.”

What’s the takeaway?

If we were to make any recommendations to parents based on this case, they would be:

1. Seek competent, experienced counsel at the earliest possible stage of any proceedings that could potentially involve custody or child welfare issues.
2. The press coverage of the case refers to allegations of religious animus, although it is noteworthy that the court made no reference to this subject – evidencing that those allegations played no part in the court’s reasoning.  We caution our readers that religion can play a tricky role in these types of cases (and of course we do not condone the making of any cruel comments, whether motivated by religion or otherwise).  While Wisconsin v. Yoder and its progeny stand for robust protection of parents’ religious values vis-à-vis government intervention in family matters, religious concerns, if present, often take a backseat in the eyes of the court as compared with scientific and medical evidence.
3. Know what you’re getting into when you seek psychiatric care for your child or teen. In this case, a referral for anxiety and depression “quickly turned into” a diagnosis of gender dysphoria. Forewarned is forearmed.