Ex parte Anonymous

• Decision Date: 21 June 2001
• Citation: 806 So.2d 1269
• Parties: Ex parte ANONYMOUS. In the matter of Anonymous, a minor.
• Court: Alabama Supreme Court

806 So.2d 1269

Ex parte ANONYMOUS.

In the matter of Anonymous, a minor.

1001640.

Supreme Court of Alabama.

June 21, 2001.

MOORE, Chief Justice.

An unemancipated minor petitions this Court to review the judgment of the Court of Civil Appeals affirming the trial court's denial of the minor's petition for a waiver of parental consent to an abortion. We uphold the judgment of the Court of Civil Appeals and deny the petition.

I.

On May 25, 2001, the minor filed a petition in the trial court, seeking a waiver of parental consent to an abortion. Prior to the hearing on her petition, the petitioner's attorney filed a motion seeking the recusal of the trial judge; that motion was subsequently denied.¹ On May 30, 2001, the trial court conducted a hearing on the minor's petition. At the conclusion of the hearing, the trial court orally denied the petition. The trial court then entered a written order denying the minor's petition. The minor appealed to the Court of Civil Appeals, which, on June 8, 2001, affirmed the trial court's judgment, without an opinion.

The record in this case reflects that the minor is 16 years old. At the time of the hearing on her petition, she was approximately 10 ½ weeks pregnant and had just completed her junior year of high school. The minor maintains a straight-A grade point average and is involved in extracurricular activities. She testified that she plans to attend college after she graduates from high school and that she currently has a part-time job. She further testified that the baby's father is 17 years old and that he will support her in whatever decision she makes.

The minor testified that she expects her parents would react poorly to the news of her pregnancy but that she had never discussed with them what their reactions might be if she were to become pregnant. She stated that she and her parents enjoy a good relationship and that her parents are both physicians.²

The minor testified that she spoke with her pediatrician "very briefly" about the medical procedure and that she further discussed her plans with a counselor at a center where pregnancy tests are performed. On at least three occasions, the minor attempted to speak to physicians and/or nurses at local abortion clinics— where she considered having the procedure performed—but on each occasion, the facility refused to allow her to speak to a physician or nurse about the abortion procedure. The record does not indicate why those medical facilities denied the minor's request to speak to a physician. The minor also has researched the procedure using the Internet.

The minor described the abortion procedure, stating that she would be placed under local anesthesia during the procedure and that the fetus would be removed by vacuum extraction.³ She testified that she had been informed of the risks of the procedure, which, she said, included "hemorrhaging, infection, perforation of the uterus, as well as even death. There is also more risk for breast cancer I found out recently. And then mentally you have denial, fear, anger, thoughts of suicide, et cetera." She indicated that she was willing to accept these risks.

The minor testified that she had been made aware of alternatives to having an abortion, including rearing the child herself and placing the child for adoption but that she had rejected those alternatives. She testified that she would inform her older sister of the procedure and that her sister would "probably" assist her if any subsequent medical complications arose.

At the conclusion of the minor's testimony, the trial judge asked pointed question and then expressed her concerns about the minor's maturity and about whether the minor was sufficiently well-informed. In her written order denying the minor's petition for a waiver of parental consent, the trial judge stated:

"The Court finds that the minor is not mature and well-enough informed to make a decision about abortion without the consent of a parent. The minor's parents, both physicians are uniquely equipped to advise her in this life crisis. The minor's testimony describes a functional family that is a viable social unit.

"Neither the minor's testimony nor her carriage, demeanor or deportment satisfied this court's inquiry into her maturity. Further she lacks the reasoning and life experience necessary to make a knowing and informed decision that this life crisis dictates.

". . . .

"This minor is woefully uninformed. Her testimony included a cursory recitation of the alternatives to abortion and her quick dismissal of those alternatives. The minor had a brief conversation with her pediatrician and the pediatrician expressed concern for the minor's health. The Court finds that this is the only professional advice the minor received.

"Further, this minor was denied an opportunity to discuss the abortion procedure with abortion nurses or abortion doctors. Their refusal to provide the minor with information about abortion compels this court to find that this immature minor is lacking the ability to make a fully informed choice that considers the immediate and long range consequences of abortion.

". . . .

"Therefore it is the finding of this court that the minor is not mature and well enough informed to intelligently decide to have an abortion without parental consent and that under the proposed circumstances and conditions abortion is not in the best interest of the minor."

The minor alleges, as grounds for reversing the judgment of the Court of Civil Appeals and granting her petition that our recent decision in Ex parte Anonymous, 803 So.2d 542 (Ala.2001), incorrectly construed controlling precedent. Specifically, she argues, the ore tenus standard of review should not apply to cases involving the waiver of parental consent to an abortion. We rejected that argument in Ex parte Anonymous, supra,

and we now reaffirm the holding in that case.

II.

In 1993, this Court held that a trial judge's decision in a judicial-bypass proceeding is not entitled to an ore tenus presumption of correctness: "The only testimony in this case was by the minor petitioner; therefore, the testimony in this case is undisputed. When the facts are undisputed, the ore tenus rule has no application." Ex parte Anonymous, 618 So.2d 722, 725 (Ala.1993) (citations omitted). A thorough review reveals that that holding was not based on an adequate reliance upon the language, purpose, or intent of the statute. Neither did it rely upon the nature of the proceedings. Rather, that Court recited a long-standing, simple rule of law and applied it without any substantive analysis.

The first question that Court should have asked, and that we ask, is whether the determination of maturity, of whether the minor is well-informed, and of whether an abortion is in the minor's best interest are questions of law or fact. The parental-consent statute itself provides sufficient guidance to answer this question. Section 26-21-4, Ala.Code 1975, specifically requires a hearing and requires the trial court to "issue written and specific factual findings" at the conclusion of the hearing. These requirements are not without meaning. The Legislature clearly contemplated that the trial court was in the best position —after conducting a hearing—to determine from its observations whether the witness was sufficiently mature and well-informed, or if a waiver of parental consent was in the best interest of the minor. As Justice Lyons said in Ex parte Anonymous, supra

: "[I]t would make no sense for the Legislature to require a hearing before a judge during which a transcript of the proceedings must be recorded, followed by specific factual findings and conclusions, if the judge's role was essentially that of a court reporter...." 803 So.2d at 556 (Lyons, J., concurring specially).

Furthermore, this conclusion is consistent with the conclusions reached by other courts. "[T]he determination of maturity is largely an issue of fact ...." Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson, 716 F.2d 1127, 1136 (7th Cir. 1983). "This requirement [that the petitioner be mature and sufficiently well-informed] implies that the trial judge is to weigh the evidence and determine the credibility of the minor or any other witnesses. These are typical fact-finding functions, performed by a trial court only after hearing the minor's live testimony and viewing her demeanor." In re Doe, 19 S.W.3d 249, 253 (Tex.2000). "[T]he question of what is or is not in `the best interests of the child' is a question of fact...." Schotz v. Oliver, 361 So.2d 605, 607 (Ala. Civ.App.1978). "The determination of the best interests of the child is a question for the trier of fact. `We do not overturn the decision of the trial court unless we are persuaded of an abuse of discretion or the presence of a violation of some legal principle.'" Pace v. Pace, 22 P.3d 861, 865 (Wyo.2001). The "best interests of a child is a matter or question of ultimate fact reviewable under the clearly erroneous standard of review." In re Doe, 89 Haw. 477, 487, 974 P.2d 1067, 1077 (Haw.Ct.App. 1999).

Whether a minor is mature and sufficiently well-informed is a difficult, yet delicate and important, decision that a trial court must necessarily make, not only in light of the testimony of the minor, but also in the context of the minor's demeanor, background, and sundry other circumstances. Even the United States Supreme Court has acknowledged that it is "difficult to define, let alone determine, maturity...." Bellotti v. Baird, 443 U.S. 622, 644, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).

In making such a difficult determination, a trial judge, observing the testimony, may draw inferences from the minor's composure, analytic ability, appearance, thoughtfulness, tone of voice, expressions, and her ability to articulate her reasoning and conclusions. In fact, no list of the inquiries or considerations pertinent to an assessment of maturity could purport to be...