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 Unless you live in Ohio, the case is not binding precedent for the courts in your state.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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Cincinnati trans-teen custody decision: More than meets the eye

by worriedmom

4thWaveNow contributor Worriedmom has practiced civil litigation for many years in federal and state courts.

Note: Bolding in the court decision (reproduced at the bottom of this post) is by 4thWaveNow, to draw our readers’ attention to certain aspects of the case which have been ignored (so far) by the mainstream press.

Update 2/19/18: We have just posted a more detailed legal analysis of the case here.


So, we now have the decision in the soon-to-be-infamous “Cincinnati transgender custody case,” which we have reprinted below in its entirety as a service to our readers. Does the case strike an amazing and courageous blow for the freedom of transgender teens everywhere? No. Does the case give jack-booted government thugs the ability to batter down parents’ doors and drag kids off to the surgical suite? Again, no. Should this case strike fear into parents’ hearts and cause them to re-think their views on the advisability of transition for their children and teens? No.

A reading of the case – which we plan to review in much greater detail in the coming days – shows that it is, by and large, a temperate decision, the primary effect of which is merely to maintain the status quo until the person at issue, “JNS,” reaches the age of legal majority, which will happen shortly.

In fact, it is abundantly clear that JNS’ impending 18th birthday, which the decision characterized as occurring in a “few … months” is the over-riding factor driving this opinion. The Court has actually insured that nothing will take place in JNS’ medical care until JNS makes the decision, because the Court ruled that no treatment options can be pursued by the grandparents unless and until JNS has been evaluated by an independent medical authority. Practically and logistically, this will not happen until after JNS has turned 18, at which time JNS will be making the decision.

A few other points from the decision also raise interesting issues:

* The parents, while characterized as religious zealots and worse in the press, have supported JNS’ psychiatric treatment, both financially and otherwise.

* The Court noted that the parties’ claims about the likelihood or potential for suicide had constantly shifted throughout the history of the case; and

* The Court in fact expressed “concern” about the admission by Cincinnati Children’s Hospital Medical Center that “100%” of its patients are considered “appropriate” candidates for gender treatment.

cincy court case

Particularly in view of the sensational coverage attracted by this case, we feel it is even more important than usual for our readers to know and understand the relevant facts for themselves. In our view, this is a highly unusual case, likely to be of limited precedential value and confined to its particular facts and circumstances, that should not occasion undue concern, or elation, on either side.

Court decision is reproduced below for our readers’ convenience.


HAMILTON COUNTY JUVENILE COURT

In re: JNS                                                                           Case No. Fl7-334 X

JUDICIAL ENTRY

This case began on February 8, 2017, with the filing by the Hamilton County Department of Jobs and Family Services [hereinafter HCJFS].seeking an Interim Order of Custody of the child in question. Two days later an agreement was reached – specifically “to avoid a hearing on the motion”- whereby the parents agreed to abide by a pre-existing 11Safety plan,” thereby leaving the child in residence with the maternal grandparents. Parents further agreed to make the child available to participate in recommended therapy with Cincinnati Children’s Hospital Medical Center [hereinafter Children’s Hospital]. The agreement included the warning that “Any breach of these orders of interim protective supervision should alert HCJFS that an emergency situation exists and a risk assessment should be done to determine whether emergency court action is needed.11    A Guardian ad Litem for the child was also appointed at this hearing.

In April of 2017, the situation had deteriorated to the point that HCJFS proceeded on the complaint alleging dependency, neglect and abuse and sought temporary custody of the child.

By stipulation, the parties agreed to an adjudication of dependency, and the allegations of neglect and abuse were withdrawn. Based upon the agreement of the parties, the child was placed in the temporary custody of HCJFS and ordered to remain in continued residence with maternal grandparents. The parents declined reunification services and all parties expressed their agreement with the permanency goal of preparing the grandparents to guide the child to adulthood.

Following that adjudication and disposition by stipulation, several case plans were filed, all stating that Children’s Hospital “would like” to begin hormone therapy with the child pursuant to a treatment plan for the diagnosis of gender dysphoria.

Parents objected to the plan and several hearings were held. On August 23, 2017, the Magistrate declined to expedite the matter as he found that no emergency, as previously suggested in the petitions, existed. Inexplicably, the case plan seeking hormone treatment was withdrawn and the case took the posture of a relatively routine post-dispositional hearing on the issue of who should be the custodian of the child, weighing first and foremost the best interests of that child. HCJFS filed a Motion to Terminate Temporary Custody and Award Legal Custody to the maternal grandparents. An in-camera interview of the child was conducted on October 2, 2017, by the Magistrate and reviewed in preparation for the post-dispositional phase of the trial by this Court.

On December 6, 2017, maternal grandmother filed a Petition for Custody, and maternal grandfather filed a Petition for Custody on December 8, 2017. The matter was before this Court for final determination of custody.

If only it could be that simple.

On December 12,2017, January 23,2018 and January 26,2018, the Court conducted a trial on the post-dispositional motions.

The following attorneys and parties appeared: assistant prosecuting attorney Donald Clancy representing Kody Krebs and Diedre Gamer (HCJFS); attorney Karen Brinkman and attorney Amanda Pipik representing mother and father; attorney Ted Willis (civil attorney for mother and father); attorney Paul Hunt representing Brenda Gray-Johnson (Guardian ad Litem) and Mary Ramsay (Court Appointed Special Advocate); attorney Tom Mellott representing JNS (child); attorney Jeff Cutcher representing maternal grandparents; and attorney Jason Goldschmidt representing Children’s Hospital.

Despite the withdrawal of the case plan calling for hormone therapy to begin, the testimony presented by HCJFS centered on the medical condition of the child and the function of the Children’s Hospital Transgender Program. While the child was first presented BY HER PARENTS to Children’s Hospital for psychiatric treatment of anxiety and depression, that diagnosis rather quickly became one of gender dysphoria. Gender dysphoria is defined as: discomfort or stress that is caused by a discrepancy between a person’s gender identity and the gender assigned at birth, and the associated gender role….11   (World Professional Association for Transgender Health, Standards of Care for the Health of Transsexual, Transgender and Gender Nonconforming People, 7th Version). Treatment of that discomfort and stress can involve different degrees of intervention,and must be highly individualized and can range from psychotherapy, hormone therapy and ultimately surgical intervention to change sex characteristics. (It must be noted that the parents, while objecting to the administration of hormone therapy, have continued to financially support the ongoing therapy sessions for the child at the Children’s clinic.) The entire field of gender identity and non-conforming gender treatment is evolving rapidly and there is a surprising lack of definitive clinical study available to determine the success of different treatment modalities. One aspect, however, is constant in the testimony presented in court of all of the medical personnel, and in the sparse recognized professional journals available, and that is that the potential candidate for gender transition therapy must be consistent in the presentation of his or her gender identity. It is a concern for the Court that the statistic presented by Dr. Conard, the Director of the Transgender Program, in her testimony is that 100% of the patients seen by Children’s Hospital Clinic who present for care are considered to be appropriate candidates for continued gender treatment.

In this case, it is understandable that the parents were legitimately surprised and confused when the child’s anxiety and depression symptoms became the basis for the diagnosis of gender dysphoria. The child has lived until the summer of 2016 consistent with the assigned gender at birth. The parents sought appropriate mental health treatment when their child’s generalized anxiety and depression reached the point that hospitalization became necessary. The parents acknowledged that the child expressed suicidal intent if forced to return to their home. It is unfortunate that this case required resolution by the Court as the family would have been best served if this could have been settled within the family after all parties had ample exposure to the reality of the fact that the child truly may be gender non-conforming and has a legitimate right to pursue life with a different gender identity than the one assigned at birth.

It is not within this Court’s jurisdiction to intrude on the treatment of a child except in the very rare circumstance when the child’s life hangs in the balance of treatment versus non-treatment. The threat of suicide and the existence of suicidal ideation can never hold this Court hostage as it searches for proper outcome of litigation revolving around the best interests of that child. Despite the fact that the parents initially stipulated during the adjudicatory phase that the child had expressed suicidal ideation, the medical records in evidence indicate that at the time of the filing of the complaint, that ideation was not presenting as an imminent threat.

It is particularly troubling to the Court that the initial filings in this case indicate that suicide is a potential factor to be considered by the Court, when in the medical records admitted during trial it is clearly not. On January 31, 2017, the medical record clearly indicates “NO” to the question: Is the patient at risk for suicide? The complaint alleging the emergency nature of the facts was filed the very next week! The medical records admitted into evidence show that on February 10, 2017, the same response was entered to the same question. This was a mere three days after the filing of the complaint, and during the pendency of the 11emergency” posture of the complaint. The suggestion of imminent suicide alleges a fact pattern that requires this Court to act expeditiously in determining to what extent-if any-court intervention is appropriate. Should the Court take jurisdiction every time a minor threatens self-harm if he or she is unable to gain parents’ consent for some desired procedure, such as a rhinoplasty or similar cosmetic surgery? It is a sad commentary that the Juvenile Court system deals with the suicidal ideation of troubled adolescents on a regular basis but cannot let that threat govern the outcome or disposition of a case before it.

It now becomes the duty of this court to determine what is in the best interests of this child for the few remaining months of minority. Evidence was presented that the parents agree that the child should remain with the maternal grandparents and continue to attend the high school at which the child is excelling both academically and musically. The child wishes to remain in the care of the grandparents. The grandparents are suitable caregivers and have demonstrated an ability to meet the child’s needs. The Court Appointed Special Advocate and the Guardian ad Litem for the child recommended a grant of legal custody to the grandparents and advocated that the child’s best interest was served by the continued placement with the grandparents.

THEREFORE, it is the order of the Court that the Temporary Custody to HCJFS is terminated and Legal Custody of the child is awarded to the maternal grandparents, subject to the following conditions:

  1. Grandparents shall have the right to consent to the child’s petition to change name filed in the Probate Court.
  2. Grandparents, indicating in open court that they do not choose to pursue support for the

child, shall immediately cover the child with insurance for medical care.

  1. Grandparents shall have the right to determine what medical care shall be pursued at Children’s Hospital and its Transgender Program, but before hormone therapy begins, the child shall be evaluated by a psychologist NOT AFFILIATED with Cincinnati Children’s Hospital on the issue of consistency in the child’s gender presentation, and feelings of non-conformity.
  2. Parents are granted reasonable visitation and encouraged to work toward a reintegration of the child into the extended family.

In accordance with 42 U.S.C. Section 11431, the above-referenced child is entitled to immediate enrollment in school as defined by O.R.C. section 3313.64. The enrollment of a child in a school district under this division shall not be denied due to a delay in the school district’s receipt of any records required under section 3313.672 of the Ohio Revised Code or any other records required for enrollment. Northwest School District shall bear the costs of education, pursuant to O.R.C. sections 2151.35(8)(3) and 2151.362. Such determination is subject to re-determination by the department of education pursuant to O.R.C. 2151.362.

The Court would be remiss if it did not take this opportunity to encourage the Legislature to act in crafting legislation that would give the Juvenile Courts of this state a framework by which it could evaluate a minor petitioner’s right to consent to gender therapy. What is clear from the testimony presented in this case and the increasing worldwide interest in transgender care is that there is certainly a reasonable expectation that circumstances similar to the one at bar arc likely to repeat themselves. The Legislature should consider a set of standards by which the Court is able to judge and act upon that minor’s request based upon the child’s maturity. That type of legislation would give a voice and a pathway to youth similarly situated as JNS without attributing fault to the parents and involving them in protracted litigation which can and does destroy the family unit.

Judge Sylvia Sieve Hendon

February/16, 2018

 

The Tide Pod Challenge: How a teenage self-harm fad ought to be handled

by Overwhelmed

If you haven’t heard, the Tide Pod Challenge is all the rage with teens and young adults. Unfortunately, many of them have bitten into, ingested, and accidentally inhaled the liquid laundry detergent packets, leading to serious medical consequences. Several young people have even died.

Tide bottleWhy has the challenge become so popular? Well, this age group is not known for risk aversion or for considering the consequences of their actions. And many of them have a social media presence and strive to accrue “likes” and gain new followers. So when #TidePodChallenge started trending, some of them just couldn’t resist. They recorded themselves biting into laundry pods and uploaded it to various social media platforms. This in turn inspired more to join in the dare.

I’m sure 4thWaveNow readers can appreciate the parallels between the Tide Pod Challenge and Rapid Onset Gender Dysphoria.  The same age group is involved. Both are spread by social contagion, which is greatly amplified by social media. And both cause medical harms.

Dr. Susan Bradley, longtime expert in childhood gender dysphoria, as well as autism, had this to say about Rapid Onset Gender Dysphoria (ROGD) in a recent article in the Canadian journal Post-Millennial:

In my own practice, I have seen a good many young women displaying the phenomenon known as “rapid onset gender dysphoria,” or ROGD, which overwhelmingly affects girls.

Typically, the ROGD teenage girls I see have, wittingly or not, begun to experience homoerotic feelings about which they are conflicted. They tend to be socially isolated, and somewhere “on the spectrum.” They may have histories of eating or self-harm disorders.

They have found companions with the same attributes on Internet sites, which diminishes such adolescents’ sadness over their social isolation, but which can also lead to foreclosure of reflective thinking about their own feelings and situation. Some of these girls are depressed, afflicted with suicidal ideation. Because of the initial euphoria they experience in finally “belonging” to a well-defined kinship group, they tend to embrace the idea of transitioning wholeheartedly as the solution to their other problems.

I’ve been impressed with the actions being taken to stem the Tide Pod Challenge (which I list below). It gives me hope that when the serious ramifications of Rapid Onset Gender Dysphoria are eventually acknowledged, steps will be taken to curb it as well.

So, how have responsible adults acted to reduce the number of young people being harmed by the Tide Pod Challenge?

  1. Many journalists are reporting about it. The public is being informed of this trend, including the serious medical implications—seizures, chemical burns to the eyes which can cause temporary blindness, fluid in the lungs, respiratory arrest, coma, death.
  1. YouTube (owned by Google) has removed videos that show people taking bites of laundry detergent packets. According to a spokesperson: “YouTube’s Community Guidelines prohibit content that’s intended to encourage dangerous activities that have an inherent risk of physical harm. We work to quickly remove flagged videos that violate our policies.”
  1. Facebook has followed suit, deleting content off its platforms (including Instagram), stating “we don’t allow the promotion of self-injury and will remove it when we’re made aware of it.”
  1. Procter and Gamble, which owns Tide, is trying to turn the tide (sorry, I couldn’t resist) of this social contagion. According to a company representative, “We are deeply concerned about conversations related to intentional and improper use of liquid laundry pacs and have been working with leading social media networks to remove harmful content that is not consistent with their policies.” Tide has even enlisted a celebrity, NFL star Rob Gronkowski, to appear in a Twitter video informing people that Tide Pods are for washing, not eating. It has already garnered millions of views.

tide podsThis is exactly how a socially contagious craze that is impacting young people SHOULD be handled. I dream of more journalists honestly covering Rapid Onset Gender Dysphoria and its associated often-irreversible medical consequences. I wish pharmaceutical companies would speak up and condemn the inappropriate, non-FDA approved, off-label use of their products. I hope social media platforms will restrict content that glorifies tweens, teens, and young adults altering their bodies via binding, cross-sex hormones, double mastectomies, and genital surgeries. It could easily be interpreted that cheering on medical transition already qualifies as a violation of YouTube’s policy of encouraging “dangerous activities that have an inherent risk of physical harm” and Facebook’s “promotion of self-injury.”

But unfortunately, the transgender rights movement is overshadowing this epidemic. I think the majority of the public is totally unaware that kids are being influenced, especially by social media, to believe that they are transgender. They become convinced their bodies are wrong and in need of drastic life-long medical interventions. The adults who are aware of this contagion are often afraid to raise concerns because they will be labeled transphobic (and potentially lose their jobs). Of course, this seriously dampens the opportunity for rational discussion on this topic. Mainstream journalists, particularly in the United States, have been extremely hesitant to cover it.

I have no doubt that Rapid Onset Gender Dysphoria will eventually become widely known as a disastrous medical fad. Steps will be taken to curtail the damages. It’s just a question of when. In the meantime, parents of ROGD kids and their allies will keep speaking out. They’re doing what they can to reduce the number of young people who may eventually regret how easy it was to medically transition.

Unlike the Tide Pod Challenge, the spread of Rapid Onset Gender Dysphoria has gone unchecked for several years now. Thousands of young people and their families have been impacted. It has gotten so out of control that serious efforts need to be undertaken to counteract the nearly insurmountable amounts of misinformation, and help control this social contagion. This effort needs to be more than parents speaking out. Medical organizations need to review the science (not rely on trans activist ideology), reevaluate their stance on pediatric medical transition, and rein in rogue practitioners. If we have any chance at stemming this, it will have to be done on a grand scale from multiple fronts.