"The probate court's fixation upon H.C.W.'s maturity to express a meaningful preference resulted in its failure to consider other significant factors relation to H.C.W.'s best interest," Judge Michael Powell of the 12th District Court of Appeals in Middletown wrote in the court's opinion.
RELATED: LGBTQ groups join effort in Warren County name-change lawsuit
Powell preceded Kirby as probate and juvenile court judge in Warren County, serving there from April 2000 to October 2012. In April 2013, Kirby was appointed to the seat after Powell moved to the appeals court.
The teen was born female but identifies as male, prompting the name change request.
The three-judge appeals court panel, in a March 4 decision, ordered Kirby to “reconsider the application for change of name pursuant to the best interest factors recognized herein and based upon the record or after such further proceedings as the probate court deems necessary.”
The court found Kirby failed to recognize the name change was requested by the mother, Stephanie Whitaker, and not H.C.W., and his decision failed to appreciate the parents’ preferences or the child’s best interest.
In addition the court found Kirby failed to appreciate the steps the parents took to ensure the child wanted the name change, including mental health counseling in anticipation of therapy.
MORE: Transgender youth researched suicide prevention and runaway assistance before death
“The incontroverted evidence revealed that H.C.W. has counseled with his trangender therapist approximately 20 times in hour-long sessions,” Powell wrote.
“The probate court further overlooked the practical aspects of H.C.W’s male gender identity,” such as his preferred name and the way he dressed, Powell added.
While concurring with Powell and Judge Robert Ringland, Judge Robin Piper found no reason to send the case back to Warren County.
“I would not remand, but would instead enter judgment as a matter of law,” Piper said. “I write separately because the rationale of my colleagues is both unnecessary and inappropriately applied.”
In June 2018, Kirby ruled the name change sought by Stephanie Whitaker and her 15-year-old was not "reasonable and proper and in the child's best interest at this time," prompting the appeal filed on July 9.
The Whitakers and their lawyer, Josh Langdon, were assisted in the appeal by lawyers from National Center for Lesbian Rights.
The judges weighed Langdon’s brief against Kirby’s ruling. The judge made no additional arguments.
RELATED: Federal judge dismisses Warren County transgender name change lawsuit
The couple also filed a federal lawsuit to overturn Kirby’s ruling, while awaiting the appeals court decision. The federal court declined to intervene, while the state appeal was pending.
It was unclear how Kirby would respond to the appeals court decision. There were no changes made on Monday to the case docket.
About the Author
