Ex parte Anonymous

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM.
Citation803 So.2d 542
Decision Date01 June 2001
PartiesEx parte ANONYMOUS, a minor. In the Matter of Anonymous, a minor.

803 So.2d 542

Ex parte ANONYMOUS, a minor.
In the Matter of Anonymous, a minor

1001488.

Supreme Court of Alabama.

June 1, 2001.


803 So.2d 543
PER CURIAM

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.

Under Alabama's parental-consent statute, § 26-21-1 et seq., Ala.Code 1975, a minor may petition for a waiver of the requirement that a parent or legal guardian consent to her having an abortion. In enacting that statute and in setting forth its purpose, the Legislature expressly found that "parental consultation is usually desirable and in the best interests of the

803 So.2d 544
minor." § 26-21-1(b), Ala.Code 1975. The minor in this case filed her petition pursuant to § 26-21-4, Ala.Code 1975, which provides, in part
"(a) A minor who elects not to seek or does not or cannot for any reason, obtain consent from either of her parents or legal guardian, may petition, on her own behalf, the juvenile court, or the court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement of this chapter. Notice by the court to the minor's parents, parent or legal guardian shall not be required or permitted...."

The requirement of parental consent shall be waived if the trial court hearing the minor's petition finds either:

"(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or
"(2) That performance of the abortion would be in the best interest of the minor."

§ 26-21-4(f), Ala.Code 1975.

The minor filed her petition in the trial court on May 8, 2001. On May 11, 2001, following an ore tenus proceeding, at which only the minor testified, the trial court entered an order denying the minor's petition. The minor appealed to the Court of Civil Appeals, which, in an opinion dated May 21, 2001, affirmed the trial court's judgment.

The record in this case reflects that the minor is 17 years old. At the time of the hearing on her petition, she was eight weeks pregnant. She is a senior in high school, a straight-A student, and very involved in extracurricular activities. She plans to attend college in the fall, and she has been awarded two college scholarships. She has a part-time job and she puts her earnings from that job in a savings account to be used for college. The minor testified that the baby's father is 18 years old and that he also plans to attend college in the fall. She testified that he supports her decision to have the abortion.

The minor testified that her parents would react poorly to the news of her pregnancy. She stated that she had discussed the subject of abortion with her parents only when at church services and that her parents "really did not say much" about abortion but that they were "against it pretty much." She also stated that her parents had never discussed with her what their reactions might be if she were to become pregnant. She stated that she did not have a close relationship with her parents; however, she also testified that her mother was so happy she cried when the minor was chosen as a member of the majorette squad at the college she plans to attend in the fall.

The minor testified that she had talked to nurses at Planned Parenthood and at two medical clinics that perform the abortion procedure; she also said she had spoken to a "lady" at a local health department. The minor stated that she had also consulted a family friend who was in her late 30s and that friend's sister-in-law, who had had an abortion.

The minor testified that she had been made aware of alternatives to having an abortion, including rearing the child herself, placing the child for adoption, or living at a "maternity house," a residential setting in which she could reside during her pregnancy and for up to 30 days after she gave birth. The "maternity house" would arrange for the child to be placed in foster care until such time as she could assume responsibility for the child. The minor testified that when she was investigating her options, she had asked the personnel at the medical clinic at which she

803 So.2d 545
planned to have the abortion to allow her to speak to a physician; although she was told she would be able to speak to a physician, the clinic later refused to allow her to do so. The minor testified that two other medical facilities had also refused to allow her to speak to a physician 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 testified that she rejected the alternatives to abortion because she wanted to attend college in the fall and she wanted to participate in the college majorette squad

The minor's testimony included a brief description of the abortion procedure; she stated that she would be placed under local anesthesia during the procedure and that the fetus would be removed by vacuum extraction. She testified that she had been informed of the risks of the procedure, which, she said, included infection, bleeding, possible sterility, and even in some cases death. She stated that she understood she would receive counseling immediately before the procedure, and that counseling also would be available at any time after the procedure. She testified that she would do whatever was necessary if she had any complications from the procedure, including confiding in her parents.

At the conclusion of the minor's testimony, the trial judge expressed her concerns about the minor's maturity and about whether the minor was sufficiently well-informed about the abortion procedure, in view of the fact that she had not been allowed to speak to a physician, particularly because the facility she had chosen to perform the abortion had reneged on its assurance that she could speak to a physician before the procedure. The trial judge noted: "Most of us don't even have a root canal without talking with a dentist first about what's involved." (R. 23.)

In her written order denying the minor's petition for a waiver of parental consent, the trial judge included the following findings and conclusions:

"Petitioner has been denied the opportunity to engage in pre-op counseling with the physician, evaluate the physician or interview and question the physician. Likewise the physician hasn't evaluated petitioner or furnished information to petitioner[,] so the court finds the petitioner is not mature or well-informed and that abortion at this time under the proposed circumstances is contra to her best interests. The proposed provider refused to let petitioner even speak to physician after earlier saying she could."

(C. 4.)

In Matter of Anonymous, 618 So.2d 718 (Ala.Civ.App.1993), a minor had petitioned for a judicial waiver of the parental-consent requirement. The trial court denied her petition, and the Court of Civil Appeals affirmed, stating:

"The judgment of the trial court under the facts here should be accorded the presumption of correctness accorded all judgments and findings of trial court[s] that have heard evidence ore tenus. A trial judge who has seen the minor and heard her testimony is in the best position to make determinations regarding her maturity."

618 So.2d at 720. This Court, after granting the petition for review of the decision of the Court of Civil Appeals, reversed that court's judgment and rendered a judgment granting the waiver. Ex parte Anonymous, 618 So.2d 722 (Ala.1993). The Court concluded that because the only testimony was the undisputed testimony of the minor, the ore tenus rule did not apply.1

803 So.2d 546
618 So.2d at 725. Justice Maddox dissented, stating that the correct standard of review was the standard applied by the Court of Civil Appeals. We agree, and we hereby overrule Ex parte Anonymous, 618 So.2d 722 (Ala.1993).

The ore tenus rule provides that a trial court's findings of fact based on oral testimony "have the effect of a jury's verdict," and that "[a] judgment, grounded on such findings, is accorded, on appeal, a presumption of correctness which will not be disturbed unless plainly erroneous or manifestly unjust." Noland Co. v. Southern Dev. Co., 445 So.2d 266, 268 (Ala.1984). "The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses." Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986). As a corollary, the ore tenus rule has no application where the facts are indisputably established and the only question is whether the trial court correctly applied the law to those undisputed facts. See Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999).

As the per curiam opinion of the Court of Civil Appeals notes, § 26-21-4, Ala. Code 1975, clearly contemplates that the trial court will conduct a hearing at which the minor testifies, after which the trial court is to issue specific factual findings and legal conclusions. That hearing is to be transcribed. See 26-21-4(g), Ala.Code 1975. The nature of a proceeding for obtaining a waiver of parental consent for an abortion will almost always preclude the appearance of any adverse party, because any party adverse to the proceeding will be unaware of the proceeding and will, therefore, be unrepresented. See § 26-21-4(a), Ala.Code 1975. Therefore, as in this case, the record will contain only the testimony of the minor petitioner as adduced by her counsel, and the testimony of other witnesses called by the petitioner to support the petition; neither the minor petitioner nor the witnesses will have been subjected to cross-examination. Thus, there will seldom be contradicting testimony in the record.

We find that in a case where a minor...

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60 practice notes
  • Reprod. Health Servs. v. Strange, No. 17-13561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 30, 2021
    ...See § 26-21-4(e) & (f). And the bypass court is free to reject a minor's undisputed or unrebutted testimony. See Ex parte Anonymous , 803 So. 2d 542, 546 (Ala. 2001). Indeed, there are a number of published cases affirming the rulings of bypass courts which found, in ex parte scenarios, tha......
  • Ex parte Anonymous
    • United States
    • Supreme Court of Alabama
    • July 5, 2001
    ...in the original form whether or not they were underlined." Applying the ore tenus rule, as we are required to do by Ex parte Anonymous, 803 So.2d 542 (Ala.2001), this Court affords the trial court's findings considerable deference and will reverse the trial court's judgment only when that j......
  • In re Anonymous
    • United States
    • Alabama Court of Civil Appeals
    • July 27, 2001
    ...thoughtfulness, tone of voice, expressions, and her ability to articulate her reasons and conclusions." In Ex parte Anonymous, 803 So.2d 542 (Ala.2001), our supreme court overruled earlier precedent and held that, in appeals from the denial of a minor's petition for a waiver of parental con......
  • In re Doe, No. 2D05-5321.
    • United States
    • Court of Appeal of Florida (US)
    • November 10, 2005
    ...those of her family. See, e.g., Ex parte Anonymous, 618 So.2d 722 (Ala.1993), partially overruled on other grounds by Ex parte Anonymous, 803 So.2d 542 (Ala.2001); Ex parte Anonymous, 664 So.2d 882, 884 (Ala.1995); In re Jane Doe, 134 Ohio App.3d 569, 731 N.E.2d 751, 752-53 (1999); In re Ja......
  • Request a trial to view additional results
60 cases
  • Reprod. Health Servs. v. Strange, No. 17-13561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 30, 2021
    ...See § 26-21-4(e) & (f). And the bypass court is free to reject a minor's undisputed or unrebutted testimony. See Ex parte Anonymous , 803 So. 2d 542, 546 (Ala. 2001). Indeed, there are a number of published cases affirming the rulings of bypass courts which found, in ex parte scenarios, tha......
  • Ex parte Anonymous
    • United States
    • Supreme Court of Alabama
    • July 5, 2001
    ...in the original form whether or not they were underlined." Applying the ore tenus rule, as we are required to do by Ex parte Anonymous, 803 So.2d 542 (Ala.2001), this Court affords the trial court's findings considerable deference and will reverse the trial court's judgment only when that j......
  • In re Anonymous
    • United States
    • Alabama Court of Civil Appeals
    • July 27, 2001
    ...thoughtfulness, tone of voice, expressions, and her ability to articulate her reasons and conclusions." In Ex parte Anonymous, 803 So.2d 542 (Ala.2001), our supreme court overruled earlier precedent and held that, in appeals from the denial of a minor's petition for a waiver of parental con......
  • In re Doe, No. 2D05-5321.
    • United States
    • Court of Appeal of Florida (US)
    • November 10, 2005
    ...those of her family. See, e.g., Ex parte Anonymous, 618 So.2d 722 (Ala.1993), partially overruled on other grounds by Ex parte Anonymous, 803 So.2d 542 (Ala.2001); Ex parte Anonymous, 664 So.2d 882, 884 (Ala.1995); In re Jane Doe, 134 Ohio App.3d 569, 731 N.E.2d 751, 752-53 (1999); In re Ja......
  • Request a trial to view additional results

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