Anonymous, In re

• Decision Date: 03 August 1998
• Citation: 720 So.2d 497
• Parties: In re ANONYMOUS, a minor. (In re In the Matter of ANONYMOUS, a minor). 1971860.
• Court: Alabama Supreme Court

Page 497

720 So.2d 497

In re ANONYMOUS, a minor.

(In re In the Matter of ANONYMOUS, a minor).

1971860.

Supreme Court of Alabama.

Aug. 3, 1998.

PER CURIAM.

This case involves an order of a trial court granting a 17-year-old minor's petition for a waiver of parental consent to have an abortion, pursuant to the provisions of §§ 26-21-1 to -8, Ala.Code 1975 (commonly referred to as "Parental Consent Statute"). The trial court appointed a guardian ad litem to represent the interests of the fetus at the hearing of the case; the guardian appealed to the Court of Civil Appeals, seeking review of the trial court's decision.

The Court of Civil Appeals held that the guardian ad litem had no statutory right to appeal the trial court's order, in that the right to appeal was limited to cases in which a minor's request to have an abortion without obtaining parental consent had been denied. The Court of Civil Appeals dismissed the appeal. In the Matter of Anonymous, 720 So.2d 497 (Ala.Civ.App.1998). The guardian ad litem timely petitioned this Court to review the judgment of the Court of Civil Appeal dismissing the appeal; a complete record of the proceeding was filed in this Court, and the parties have briefed the issues raised. ¹

After considering the opinion of the Court of Civil Appeals, the petitioner's brief; the briefs filed by the guardian ad litem appointed for the minor; and the brief filed by the attorney general, we affirm the judgment of the Court of Civil Appeals dismissing the appeal and holding that the guardian ad litem could not seek a review of the trial court's order.

Facts

For a better understanding of the reasons why we hold that the Court of Civil Appeals properly dismissed the guardian ad litem's appeal, we set out the basic facts involved in this case. On July 6, 1998, a minor, age 17, and seven- to nine-weeks pregnant, sought an order from the trial court authorizing her to obtain an abortion without getting parental consent. Relying on Rule 17(c) of the Alabama Rules of Civil Procedure, ² the trial court appointed a guardian ad litem to represent the interests of the fetus. The trial court also appointed a guardian ad litem to represent the interests of the minor. After conducting a hearing, at which evidence was presented both by the minor, acting by and through her guardian ad litem, and by the guardian ad litem appointed to represent the fetus, the trial court granted the waiver of parental consent.

The guardian ad litem appointed to represent the fetus appealed to the Court of Civil Appeals. That court, after citing and quoting § 26-21-4(h), Ala.Code 1975, ³ held that "[b]ecause the right of appeal is purely statutory, strict compliance with the statute authorizing the appeal is required." 720 So.2d at 497. That court concluded, in part, as follows:

"The legislature did not provide a right to appeal from the granting of a petition for waiver of parental consent. The statute specifically states that an appeal may lie for any 'minor' to whom the court 'denies' the petition. This specific wording does not leave room for judicial interpretation. In this case no minor was denied a waiver. Therefore, there is no right to appeal.

"Because there is no statutory authority for this appeal, we have no choice but to dismiss it."

720 So.2d at 497 (emphasis original).

The guardian ad litem for the fetus, within three days after the entry of that order, petitioned this Court to review that decision, and the complete record was subsequently filed. The guardian has raised three legal issues:

(1) "[D]oes a guardian ad litem, duly appointed by the Court to represent the unborn child, have a right to appeal the [trial] court's decision adverse to his (or her) life interest, which may ultimately result in the involuntary death of the unborn child[?]"

(2) "[D]oes an unborn child, otherwise healthy at 8-10 weeks of gestation (if not further developed) have a life interest to be protected against abortion by the guardian ad litem, if not the juvenile court itself[?]

(3) "[I]s Section 26-21-4 of the Code of Alabama 1975, as amended, unconstitutional because it deprives [custodial parents] of due process of law in that it permits the court to take away [their] right to rear their child without any notice[?]"

Pet. brief at 1-2. Because this petition raised a question whether the Parental Consent Statute was constitutional, the guardian served proper notice on the attorney general.

I.

We granted the petition for the writ of certiorari, and we first consider whether the Court of Civil Appeals erred in dismissing the appeal. Having reviewed the briefs submitted by the parties, we affirm the judgment of the Court of Civil Appeals.

Based upon well-established Alabama caselaw, reaffirmed by this Court on July 31, 1998, we must presume that in 1987, when it enacted Ala.Code 1975, § 26-21-1 et seq. (the Parental Consent Statute), the Alabama Legislature knew the limit of its constitutional authority. See Abbott Laboratories v. Durrett, [Ms. 1960464, July 31, 1998], --- So.2d ---- (Ala.1998), citing Siegelman v. Chase Manhattan Bank (USA), N.A., 575 So.2d 1041 (Ala.1991); Ex parte Dixie Tool & Die Co., 537 So.2d 923 (Ala.1988); Ex parte Louisville & N.R.R., 398 So.2d 291 (Ala.1981); and Ellis v. Pope, 709 So.2d 1161 (Ala.1997). The Legislature, as the Court of Civil Appeals correctly noted, did not provide a right to appeal from an order granting a petition for a waiver of parental consent. We can conclude only that the Legislature understood its subordinance to the Supremacy Clause of the United States Constitution and that it recognized that, pursuant to the United States Supreme Court's decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), it could not constitutionally confer upon a nonviable fetus the right to appeal, through a guardian ad litem, an order granting a minor's request to have an abortion. See, also, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), overruled, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). (Each of these decisions dealt with the matter of parental consent for a minor seeking an abortion and predated the adoption of the 1987 Parental Consent Statute.)

II.

We now address the guardian ad litem's argument that § 26-21-4, Ala.Code 1975, unconstitutionally deprives custodial parents of due process of law by permitting a court to take away, without any notice, the custodial parents' right to rear their minor child. Although we recognize that the Legislature specifically stated that in enacting the statute it was intending to foster "the family structure," to preserve the family "as a viable social unit," and to protect "the rights of parents to rear children who are members of their household," § 26-21-1(a), we do not believe the statute unconstitutionally denies custodial parents due process of law. See Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9-10, 18 So.2d 810, 814-15 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945).

III.

We last address the ultimate question--whether the trial court erred in granting the minor's request for a waiver of parental consent.

The record shows that the trial judge conducted an adversarial hearing and gave both the guardian ad litem appointed for the minor and the guardian ad litem appointed for the fetus the opportunity to present evidence and to argue their respective positions. Based on our reading of that record, and considering the law that the trial judge and this Court must apply, we conclude that the guardian ad litem has not shown that the trial court erred; therefore, the judgment of the trial court is due to be affirmed.

AFFIRMED.

ALMON, SHORES, HOUSTON, and KENNEDY, JJ., concur.

COOK, J., concurs in the result.

HOOPER, C.J., and MADDOX, SEE, and LYONS, JJ., concur specially in part and dissent in part.

HOOPER, Chief Justice, and MADDOX, SEE, and LYONS, Justices (concurring specially in part and dissenting in part).

The per curiam opinion, after granting the petition for certiorari review, holds that the Court of Civil Appeals properly dismissed the appeal filed by the guardian ad litem appointed to represent the unborn child. We disagree with that holding. We address not only that issue but each of the issues presented to this Court by the parties, including whether the trial court erred in appointing a guardian ad litem to represent the unborn child.

I.

We first address the question whether the trial court had the authority to appoint a guardian ad litem for the unborn child.

The Court of Civil Appeals, in dismissing the appeal, determined that the guardian ad litem appointed to represent the unborn child, even if the appointment of that guardian was authorized, could not appeal. The Court of Civil Appeals did not address the issue whether the trial court could appoint a guardian ad litem for the unborn child, but based its judgment solely upon its interpretation of the Parental Consent Statute: that the Legislature had granted the right of appeal only to a minor who has been denied a waiver of the requirement of parental consent. We cannot agree with the Court of Civil Appeals' narrow interpretation of its appellate jurisdiction. We recognize that the present proceedings are largely controlled by the Parental Consent Statute, which was adopted to recognize in the State a compelling interest in regard to the protection of immature minors who lack the ability to make fully informed choices about abortion, and we also recognize that the Parental Consent ...