Part 2, Cincinnati trans-teen custody case: Legal analysis

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 Unless you live in Ohio, the case is not binding precedent for the courts in your state.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).

cincy court case part 2Interestingly, 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.
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13 thoughts on “Part 2, Cincinnati trans-teen custody case: Legal analysis

  1. Thank you WorriedMom and Dad. You helped to get a much clearer picture of the situation. I’m sure this child as soon as they are 18 will go on to medical interventions regardless of which therapist they go to. Gee, I wonder, does any therapist in the US ever say I don’t think medical interventions would be a wise choice for you at this time?? No one is allowed to question. Now The Advocate and WPATH are out to shut down any discussion of ROGD. I’m so sick of these people!! It is so blatantly obvious at this point that anything other than support and affirm will not be allowed. From James Caspians research on detransitioners to The Trans Philly Health Conference not allowing the panel from detransitioners to present and now WPATH trying to get Lisa Littman article on ROGD retracted!!! Why are they so fucking afraid of any view other than affirm???? Ugh! I’m so so sick of it and all the professionals that are to mealy mouthed or unconcerned to stand up and be heard!

    Liked by 3 people

    • I just hope that people watching this from the sidelines will understand that the fact that the trans activists refuse to argue their own case (eg, when they just want to shut down discussion of even the existence of ROGD) then that is because they actually don’t even have any arguments.

      Liked by 3 people

      • Yes! Rather than debate, transactivists censor.
        .
        Even MDs who advocate physical interventions for the psychological problem of “gender dysphoria,” in “medical” conferences practice censorship instead of debate.
        .
        How is it ok *even in medicine* to censor debate?

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      • What is there to debate? Emotional parent arguments that “ROGD” exists vs comprehensive studies of suicide rates from the LIVED EXPERIENCE of trans people?

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      • Scaremongering about suicide is the very definition of an “emotional argument.” If you wish to have another comment of yours approved here, do the following:
        Provide documented evidence of high rates of completed suicide, with statistics, of minors specifically because they were prevented from medically transitioning. In addition, provide historical (in the last 50-100 years) evidence of high rates of suicide in the same population–people under the age of 18 who killed themselves because they were unable to obtain puberty blockers, cross-sex hormones, and surgeries.

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  2. I just find it very interesting that WPATH objections to the Littmann ROGD paper seem to center around “its based on a biased survey with self-selected respondents and thus unscientific.” Ergo the publishing Journal must withdraw the material, or at the least issue an apology. (Though what flavor of apology would be sufficient is questionable, since prior groveling of such kinds has not generally been accepted by those demanding the apologies….)

    The fact that the much touted “41% suicide rate” originated from research conducted in EXACTLY THE SAME MANNER does not seem to bother WPATH and its adherents one whit.

    I’d write more, but the smoke coming out of my ears is obscuring my monitor.

    Liked by 3 people

  3. Thank you for this. Many facts of a case like this are justifiably held from the public, but it’s good to try to understand, as well as we can, what is going on with this issue.

    Liked by 1 person

  4. Worriedmom and Worrieddad, thank you for this analysis.
    .
    I wonder when JNS started presenting in a way “not consistent” with her “assigned gender at birth.”
    .
    Did JNS start counseling at the hospital prior to her four week psychiatric admission in fall, 2016?
    .
    The judge says she has presented consistent with her “assigned gender at birth” until summer of 2016. Did her presentation change before or after she started the counseling?
    .
    In other words, did JNS start getting counseling at the hospital for anxiety and depression, then say something that an over-zealous “gender affirmative” counselor took as a symptom of transgenderism, and then get persuaded she was trans by the counselor or the hospital’s “gender clinic” and thus in dire need of physical transition? And then told that if her parents didn’t support that transition, they were transphobic?Did JNS change her mind in late January/early February of 2018 regarding whether she was suicidal? Because both of her medical exam responses, just a couple of weeks apart, state she was not. We only see that HCJFS made that claim to the court during that time. Were these *presumptions* of suicidality, on the part of over-zealous “gender affirmative” therapists and doctors at the hospital, or HCJFS?

    .
    We’ve seen these sorts of suggestions before from transactivists, professionals or otherwise, that the slightest hint of sex-role non-compliance are signs or symptoms of transgenderism.
    .
    This brings to mind the “false memory” cases prosecuted a few decades ago, in which therapists were accused of suggesting inaccurate memories in clients.
    .
    It also brings to mind the words of psychologist and UC Berkeley Professor Emeritus Margaret Singer, considered the world’s leading expert on mind control, and author of Cults In Our Midst, that some unethical or manipulated counselors have been known to use therapy sessions to persuade clients of the beliefs of a group the therapist is involved with.
    .
    I am not suggesting in the case of JNS an intentional manipulation or deception directed at her, or that there is a conspiracy or cult involvement, but simply that well-meaning professionals caught up in “gender-affirmative” beliefs may be suggesting beliefs and problems (Gender Dysphoria) to a client that the client may not have had prior to contact with these hospital counselors and doctors.

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  5. So I can answer one of your great questions immediately and will return to the others shortly.

    Re: the suicide issue. What seemed to us to come through the opinion was that the people representing JNS were making claims regarding suicidality in order to get emergency attention from the court. It’s hard to get a court to act quickly, usually there are procedures and filing dates and hearing requirements etc. that have to be complied with by the parties, but in certain cases of emergency some of those can be bypassed. (You may have heard, for instance, of a court issuing a “temporary restraining order,” which is something done on a limited record but an expedited basis, if there is a possibility of immediate harm.)

    The opinion doesn’t say so, but we definitely did get the impression from the way the court narrated the sequence of events that the people representing JNS wanted to get the court’s attention, and to act, more quickly than it otherwise would have, and may have “used” the suicide threat to cause the court to do so. Understandably, the court was irritated at this.

    Although suicide got played up in the press as a factor here (as in most child and teen transgender matters), the record certainly isn’t clear that it actually was.

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  6. Fmnst, I’ll try to answer the remainder of your questions here:

    1. You asked when JNS began presenting with a different gender than her birth sex. The opinion is not entirely clear on this, but it does state that JNS lived “until the summer of 2016” as a girl. The opinion also states that the case began in February of 2017 when the county social services agency filed a petition for custody. We must assume that JNS commenced to claim a transgender identity sometime in this period, and presumably closer to the summer of 2016 than to February of 2017. Even assuming the longest period for a claim of transgender identity, it’s clear that it was far short of one year.

    2. We can’t tell from the opinion, nor can I tell from the news coverage, whether JNS’ first encounter with the Children’s Hospital commenced with the hospitalization or pre-dated it.

    3. As I mentioned in my comment above about suicidality, this seems to have been a factor that emerged or was downplayed for strategic reasons.

    4. To the best of my knowledge there have been no lawsuits in the United States relating to detransition or “wrongful transition.” This is not surprising. Most instances of medical malpractice never reach the lawsuit stage, and even if they do, the egregious cases are usually settled out of court and with confidentiality provisions as part of the settlement. It also strikes me that this is not the type of case where a plaintiff would be likely to seek out publicity.

    5. At this point, 4thWaveNow is primarily engaging in educational, informational, and support activities, rather than advocacy work per se. I am not aware of groups in the United States that are doing such work, other than groups that are already formed under religious or socially conservative auspices (e.g., various Family Institutes, conservative legal foundations, etc.). 4thWaveNow is non-partisan.

    I will look forward to reading more of your commentary, fmnst!

    Like

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