Ex parte Anonymous

• Decision Date: 05 July 2001
• Parties: Ex parte ANONYMOUS, a minor. In the matter of Anonymous, a minor.
• Court: Alabama Supreme Court

808 So.2d 1030

Ex parte ANONYMOUS, a minor.

In the matter of Anonymous, a minor.

1001649.

Supreme Court of Alabama.

July 5, 2001.

On Submission of Findings

PER CURIAM.

An unemancipated minor petitioned 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. In re Anonymous, 808 So.2d 1024 (Ala.Civ.App. 2001). This Court reversed the judgment of the Court of Civil Appeals and remanded the cause to that court with instructions that it remand the case to the trial court for the trial court to supplement its findings. Because time was of the essence, the trial court was instructed to submit its findings, as supplemented, to this Court. Ex parte Anonymous, 808 So.2d 1025 (Ala. 2001). The trial court has now submitted its supplemental findings.

The record in this case reflects that the minor is 16 years old. She is a sophomore in high school; her grades are Bs and Cs. She is presently not employed and has never been employed. She says that she plans to attend college. At the time of the hearing on her petition she was six to seven weeks pregnant. The minor testified that the baby's father, who is 18 years old, has completed his freshman year of college. She further testified that she has not informed him of her pregnancy.

The minor's parents are divorced, and she resides with her father, who has sole custody. She testified that she has a good relationship with her father and that she has virtually no relationship with her mother. She testified that her father is a devout Catholic who is opposed to abortion. She further testified that she believed her father would "freak out" if she told him of her pregnancy. She stated that she believed if he found out about her pregnancy he would send her to stay with one of her relatives and that he would want her to carry the baby to term and then place the baby for adoption. She believed this would be his response because she had an older sister who had become pregnant; she said her father had planned to have her older sister live with relatives out-of-state until the baby was born and then the baby was to be placed for adoption. The sister, however, miscarried before the plan could be implemented. The minor stated that she decided to proceed with a judicial-bypass action rather than ask her father to consent to her having an abortion because she had gone to a clinic operated by Planned Parenthood and the people there had talked to her about the abortion and told her that she could get a "judicial-bypass termination."

The minor testified that she had discussed abortion with a number of friends her age and with a 25-year-old male friend. The minor testified that a woman who worked at the Planned Parenthood clinic had informed her about the abortion procedure and the alternatives to abortion.

When the hearing on her petition began, the minor had not discussed the matter with a physician. At the request of the minor's counsel, the hearing was recessed. When the hearing reconvened four days later, the minor had spoken to her long-time pediatrician. She had discussed with the pediatrician the alternatives to abortion. She testified that she understood that she could give the baby up for adoption, keep it herself, or have an abortion. She had discussed with her pediatrician whether she was physically able to have an abortion. When asked whether she and the doctor discussed any physical problems that would pose a danger to her if she had an abortion, she responded that the doctor had said that she would not have any problem or that more than likely she would not have any.

The minor had scheduled an appointment to discuss the abortion procedure with the doctor who was to perform the abortion. However, when the minor was told that she would have to wait at the clinic for a short time before she could see the doctor, she left the clinic.

The minor has received no counseling concerning the psychological impact of undergoing an abortion. She states that she has read a pamphlet from Planned Parenthood that states "[M]any women are relieved after an abortion" and that even though "some are sad after killing their baby, they recover quickly."

When asked to describe her understanding of the abortion procedure, she stated:

"[T]hey shoot you in the cervix where it's like a pain reliever and they open you up. And it's called a vacuum aspiration and it lasts like two to three minutes. And that clears up all the pregnant tissue. And then after that they'll go back and see if they got all of the pregnant tissue. And then you go to a recovery room and be under observation for thirty minutes or so. And if they feel like you're ready to go, they'll send you home."

She also stated that she understood that about three weeks after the abortion the patient goes in for a follow-up visit. She stated that the risks of the procedure are hemorrhaging, damage to the uterus, infertility, and death.

When asked if she had considered the alternatives and had reached a decision she stated: "I would like to have an abortion but if not then I'd give the baby up for adoption." When the trial judge asked her why she chose abortion as her first option, she responded, "Because I want to finish school. I feel like my dad would send me to live with a relative."

The trial court's supplemental findings read, in pertinent part:

"In [this court], a form order for a Denial of Waiver of Consent Order is used. The orders are often handwritten due to the time constraints involved in this type of case. Inadvertently, this judge underlined a phrase in that form which caused confusion in the appellate court. This judge regrets this marking and submits that it was done while reading the findings of the printed form for accuracy. This judge intended that both prongs of the necessary findings in a denial of a waiver of parental consent petition were found to be present in this case.

"In this case, a hearing on the petition began on May 25, 2001. During the testimony of the petitioner, counsel for the petitioner requested a recess, as the petitioner apparently had not talked to the physician regarding her abortion procedure. On May 29, 2001, the hearing resumed and the testimony was completed. The petitioner testified that during the three-day recess she did not consult with the physician who would perform her abortion procedure. She had the opportunity to do so and left the clinic before talking to the doctor. There was no explanation of why the petitioner left the clinic before consulting with the doctor, but she had the opportunity to inform herself fully on the medical procedure used by the physician in her case. She did not take advantage of that opportunity.

"However, the petitioner did discuss abortion with her pediatrician. As the pediatrician was not the physician performing the procedure and was in a different field of medicine, this Court did not believe this was sufficient to inform petitioner regarding her particular procedure.

"Second, this Court had concerns about the petitioner's lack of any knowledge about the possible long-term psychological effects of abortion. This petitioner was not informed about the possibility of negative long-term effects. Petitioner referred to the procedure as `killing the child.' She did not seem to be aware or concerned that there could be any negative consequences.

"The findings of this Court regarding the petitioner in the original order remain unchanged.

"Additionally, petitioner was a well-groomed teenager with a flat demeanor. She was not silly or laughing nor was she self-assured and decisive. Overall, this judge had concerns regarding the petitioner's maturity due to her failure to avail herself of available medical advice and her lack of any knowledge or insight into the possible psychological effects of her choice in this matter.

"Therefore, this Court respectfully submits the foregoing in reply to the remand in this matter and restates that the denial of the petition in this matter was based on the findings 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 judgment is "plainly erroneous or manifestly unjust." The trial court's responsibility in this case was to determine whether the minor is mature and well-informed enough about the abortion procedure to make an independent decision to undergo an abortion without parental consent or whether an abortion would be in the minor's best interest. See § 26-21-4(f), Ala.Code 1975.

In this case the trial court denied the request for a waiver, finding that the minor was not sufficiently mature to make such a decision without consulting her parent or legal guardian and that the performance of an abortion is not in the minor's best interest. See In re Anonymous, 805 So.2d 726, 728 (Ala.Civ.App.2001). Our review of the cold appellate record indicates that this conclusion is correct. The trial court had the opportunity to observe the minor and consider her demeanor as she testified. The trial court is in a far better position than is this Court to determine as a matter of fact the minor's maturity and level of knowledge. The trial court's findings after hearing the minor and observing her demeanor as she testified bolster our conclusion.

We conclude that the trial court's judgment is correct; it is not plainly erroneous or manifestly unjust. Therefore, we deny the petition.

PETITION DENIED.

LYONS and STUART, JJ., concur.

MOORE, C.J., and SEE and BROWN, JJ., concur specially.

HOUSTON and HARWOOD, JJ., concur in the result.

JOHNSTONE and WOODALL, JJ., dissent.

MOORE, Chief Justice (concurring specially).

The petitioner asks us to reverse the judgments of the trial court...