In re Anonymous

• Decision Date: 21 May 2001
• Citation: 803 So.2d 529
• Parties: In the Matter of ANONYMOUS, a Minor.
• Court: Alabama Court of Civil Appeals

803 So.2d 529

In the Matter of ANONYMOUS, a Minor.

2000824.

Court of Civil Appeals of Alabama.

May 21, 2001.

PER CURIAM

On May 8, 2001, an unemancipated minor, acting pursuant to § 26-21-4, Ala. Code 1975, filed a petition seeking a waiver of parental consent for an abortion. On May 11, 2001, the trial court held a hearing, at which only the minor testified. The trial court entered an order denying the minor's petition for a waiver of parental consent; the minor appealed.

"Under Alabama law, no person, subject to certain exceptions, may use any instrument, medicine, drug, or any other substance or device to terminate the pregnancy of an unemancipated minor unless that person `first obtains the written consent of either parent or the legal guardian of the minor.'" Matter of Anonymous, 770 So.2d 1107, 1108 (Ala.Civ.App.2000) (citing § 26-21-2(3) and § 26-21-3(a), Ala. Code 1975). A minor may petition the court for a waiver of the requirement that a parent or legal guardian consent to her having an abortion. The Parental Consent Statute is codified at § 26-21-1 et seq., Ala.Code 1975. In enacting that statute, our legislature set forth the purpose of the statute as follows:

"(a) It is the intent of the legislature in enacting this parental consent provision to further the important and compelling state interests of: (1) protecting minors against their own immaturity, (2) fostering the family structure and preserving it as a viable social unit, and (3) protecting the rights of parents to rear children who are members of their household.

"(b) The legislature finds as fact that: (1) immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, (2) the medical, emotional and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature, (3) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related, (4) parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning the child, and (5) parents who are aware that their minor daughter has had an abortion may better insure that she receives adequate medical attention after her abortion. The legislature further finds that parental consultation is usually desirable and in the best interests of the minor."

§ 26-21-1, Ala.Code 1975. Thus, in addition to having the purpose of protecting the rights of parents to rear their children, fostering the family structure, and protecting minors from their own immaturity, the Parental Consent Statute presumes that parental consultation on the decision whether to have an abortion is usually in the minor's best interests.

A minor may file a waiver-of-parental-consent petition in the juvenile court in the county in which she resides or in the county in which the abortion is to be performed. § 26-21-4, Ala.Code 1975. The trial court is required, with some exceptions, to rule on the minor's petition within 72 hours of the time the petition is filed. § 26-21-4(e), Ala.Code 1975. The Parental Consent Statute provides that the requirement for a parent's consent to a minor's obtaining an abortion shall be waived where the trial court finds:

"(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.

In this case, the decision made by the trial court was not whether the minor should have an abortion. Rather, the decision the trial court was called upon to make was whether the minor should be permitted to have an abortion without first consulting her parents and obtaining their consent. After hearing the minor testify, the trial court concluded that the minor should not have the abortion without her parents' knowledge and consent.

The minor is 17 years old; she was 8 weeks pregnant at the time of the hearing. She is a straight-A student at her high school, and she is very active in extracurricular activities. The minor plans to attend college, and she has been awarded two college scholarships. The minor has a part-time job, and she is saving her earnings from that job for her college education. The minor testified that her baby's father is 18 years old and that he also plans to attend college. She testified that the baby's father supports her decision to have the abortion and that he will pay for the abortion procedure.

No evidence before the trial court indicated that the minor's parents would react inappropriately to the news of her pregnancy or that their input would not be in her best interests. The evidence indicates an intact, fully functional family, which appears capable of dealing with this unfortunate situation. The family attends church together; the minor testified that she had discussed 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. Although the minor testified that she did not have a close relationship with her parents, she later testified that her mother was so thrilled she cried when the minor was chosen as a member of the majorette squad. The trial court is allowed to consider the relationship of the child with her parents. See Ex parte Anonymous, 618 So.2d 722, 724 (Ala. 1993).

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 also said she had consulted a friend whose sister-in-law had had an abortion. The minor testified that she had been made aware of alternatives to having an abortion. She stated that those alternatives included rearing the child herself, placing the child for adoption, or living at a "maternity house" during her pregnancy and for up to 30 days after she gave birth. The minor testified that the "maternity house" would arrange for the baby to be placed in foster care until such time as she could assume responsibility for the baby. The minor testified that she rejected the alternatives to abortion because she wanted to go to college in order to have a career and wanted to be a majorette while in college.

Regarding the abortion procedure, the minor testified that she would be under local anesthesia during the procedure and that the procedure involved using "an aspirator, which is like a vacuum or sucking machine. And they go in there around the uterus wall and they just suck it out. That's what they told me." The minor testified that she had been informed of some of the risks of the procedure, which, she testified, included infection, bleeding, and the possibility of becoming sterile. The minor did not testify in a manner that indicated she knew of any of the long-term psychological or emotional effects of having an abortion. See § 26-21-1(b)(1) and (2), Ala.Code 1975; Matter of Anonymous, 770 So.2d at 1108. The minor testified that she had asked the personnel at the medical clinic at which she planned to have the abortion to allow her to speak with a physician; although she was told she would be able to speak with a physician, the clinic later refused that permission and did not allow the minor to do so. The minor testified that two other medical facilities also refused to allow her to speak with a physician about the abortion procedure. The record does not indicate why the medical facilities denied the minor's request to seek the advice of a physician.

In denying the minor's petition for a waiver of parental consent, the trial judge stated that she had concerns about the minor's maturity and about whether the minor was sufficiently informed about the abortion procedure, especially because she had not been able to speak with a physician as she had tried to do. In explaining her concern that the minor had not been allowed to speak with a physician and that, therefore, the minor was not sufficiently well informed to make the abortion decision on her own, the trial judge noted that most adults do not have root canals performed without speaking to the dentist before the procedure. The trial judge stated that she was extremely concerned, and that the minor should be concerned, that the facility the minor had chosen to perform the abortion had reneged on its assurance that she could speak to a physician before having the abortion. The judge stated that she was not convinced the minor would cancel the abortion if she did not feel comfortable with the physician who would ultimately perform the abortion. The trial judge concluded that "[the minor is] scared and she is nervous and she needs the helping hand of a seasoned, dedicated professional [who] does not mind giving ten or fifteen minutes of [his or her] time."

In Ex parte Anonymous, 618 So.2d 722 (Ala.1993), our supreme court stated that when the facts are undisputed, the ore tenus rule has no application and the appellate courts must determine whether the trial court "`misapplied the law to the undisputed facts.'" Ex parte Anonymous, 618 So.2d at 725 (citing Matter of Anonymous, 515 So.2d 1254, 1256 (Ala.Civ.App.1987)). Although we apply that standard in this case, the evidence presently before this court reveals that the minor had limited knowledge of the abortion procedure, that she had not exhibited knowledge of the long-term psychological and emotional effects of the abortion procedure, and that her attempts to educate herself by speaking with a physician had been unsuccessful. Absent a finding that the waiver of parental consent would be in the minor's best interest, the waiver may be granted only when the petitioner is able to prove to the...