In re BS

• Decision Date: 19 August 2003
• Docket Number: No. 1 CA-JV 03-0028-AB.,1 CA-JV 03-0028-AB.
• Parties: In the Matter of B.S., a minor.
• Court: Arizona Court of Appeals

74 P.3d 285

205 Ariz. 611

In the Matter of B.S., a minor.

No. -0028-AB.

Court of Appeals of Arizona, Division 1, Department E.

August 19, 2003.

Carol Coghlan Carter, Gold Canyon, Attorney for B.S.

OPINION

TIMMER, Judge.

¶ 1 This appeal presents our first opportunity to consider the application of Arizona Revised Statutes ("A.R.S.") section 36-2152(B)-(F) (2003), Arizona's "judicial bypass" provision, which prohibits a person from performing an abortion on an unemancipated minor without first securing written consent from her parent, guardian, or conservator, unless the superior court authorizes the attending physician to perform the procedure.

BACKGROUND

¶ 2 On Friday, March 7, 2003, sixteen-year-old B.S., who believed she was eight and one-half weeks pregnant, filed a petition in the juvenile court pursuant to A.R.S. § 36-2152(B) seeking authorization for an abortion without permission from her parent or guardian. Pursuant to § 36-2152(B) and (E), the juvenile court held a hearing on Monday, March 10, to consider B.S.'s petition. At the conclusion of the hearing, the court announced its decision to deny the petition, which was memorialized in a written order filed the next day. ¶ 3 On March 11, B.S. filed a motion for reconsideration of the court's order. At the commencement of a hearing on the motion that same day, however, B.S. withdrew her motion, stating her intention to immediately appeal the juvenile court's order. Later that day, B.S. filed a petition for appellate review.

¶ 4 We heard oral argument on the petition on the morning of March 12, and then issued an order that afternoon affirming the juvenile court's ruling. In our order, we stated that a detailed written disposition fully explaining our decision would follow. This opinion provides that explanation.¹

STANDARD OF REVIEW

¶ 5 We review the court's interpretation of § 36-2152(B) de novo as a question of law. Energy Squared, Inc. v. Arizona Dep't of Revenue, 203 Ariz. 507, 509, ¶ 15, 56 P.3d 686, 688 (App.2002). However, giving due regard to the court's opportunity to assess witnesses' credibility and demeanor, we will set aside factual findings only if they are clearly erroneous. In re Estate of Zaritsky, 198 Ariz. 599, 601, ¶ 5, 12 P.3d 1203, 1205 (App.2000). A finding is clearly erroneous if no reasonable evidence supports it. Audra T. v. Arizona Dep't of Econ. Sec., 194 Ariz. 376, 377, ¶ 2, 982 P.2d 1290, 1291 (App.1998) (citation omitted).

DISCUSSION

¶ 6 B.S. argues the juvenile court erred by improperly applying A.R.S. § 36-2152(B). Before addressing B.S.'s specific contentions of error, we generally examine the judicial bypass procedure to establish a context for our decision.

I.

¶ 7 Like her adult counterpart, a female minor possesses a constitutionally protected right to choose whether to terminate her pregnancy. Planned Parenthood v. Danforth, 428 U.S. 52, 72-75, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). The Supreme Court had held, however, that a state may require parental consent to a minor's abortion decision as long as the state provides an alternative, judicial bypass procedure. Bellotti v. Baird, 443 U.S. 622, 643, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (commonly known as "Bellotti II"). The minor is entitled in such an alternative proceeding to show either (1) that she is sufficiently mature and well-informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes, or (2) that if she cannot make the decision independently, an abortion would serve her best interests. Id. at 643-44, 99 S.Ct. 3035.

¶ 8 Following Bellotti II, Arizona enacted successive versions of a parental consent statute with an attendant judicial bypass procedure. A.R.S. § 36-2152, Historical and Statutory Notes.² The provisions are currently codified in A.R.S. § 36-2152. Pursuant to § 36-2152(B), after "an appropriate hearing" the court must authorize a physician to perform the abortion if the court determines the pregnant minor is both "mature and capable of giving informed consent to the proposed abortion." A.R.S. § 36-2152(B). If the court finds that the minor lacks maturity, or if the minor does not claim to be mature, the court must then determine whether the performance of an abortion without consent by a parent, guardian, or conservator would be in the minor's best interests. Id. If so, the court must authorize the abortion. Id.³ ¶ 9 The legislature did not specify who bears the burden of proving the circumstances set forth in § 36-2152(B). The United States Supreme Court has held that states are not required to prove the issues of maturity and best interests in proceedings to judicially bypass parental consent requirements. Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 515, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (commonly referred to as "Akron II"). Thus, we follow our general rule that the party asserting the affirmative of an issue bears the burden of proving it. John E. Shaffer Enter. v. City of Yuma, 183 Ariz. 428, 431, 904 P.2d 1252, 1255 (App.1995) (citation omitted). Because that person in a judicial bypass proceeding is the pregnant minor, she bears the burden of proof. See In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 787 (1997)

(holding pregnant minor has burden to prove entitlement to judicial bypass in absence of legislative pronouncement to contrary); see also In re Anonymous, 833 So.2d 75, 78 (Ala.Civ.App. 2002) (acknowledging minor bears burden of proof in judicial bypass proceeding); In re Doe 4, 19 S.W.3d 337, 339 (Tex.2000) (same).

¶ 10 The legislature also did not specify the standard of evidentiary proof required under § 36-2152(B). Although "preponderance of the evidence" is the standard typically employed in civil cases, Rasmussen v. Fleming, 154 Ariz. 207, 224, 741 P.2d 674, 691 (1987), for three reasons we conclude that "clear and convincing evidence" is the appropriate standard to use in judicial bypass cases.

¶ 11 First, the non-adversarial nature of the proceeding justifies use of the clear-and-convincing-evidence standard. Specifically, because the minor controls the presentation of evidence, the court will likely not receive evidence disputing either the minor's ability to make a mature, well-informed abortion decision, or that an abortion is in the minor's best interests. Thus, in order to avoid making judicial bypass a mere pass-through proceeding, and to maximize the court's ability to make a reasoned decision within a compressed time frame, the minor must prove her entitlement to judicial bypass by clear and convincing evidence. See Akron II, 497 U.S. at 516,

110 S.Ct. 2972 (holding state may require clear and convincing evidence "when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor's testimony.").

¶ 12 Second, the heightened evidentiary standard is justified by the magnitude of the presented issue. Our supreme court has recognized the need to apply a higher evidentiary standard in exceptional civil matters that involve "personal interests more important than those found in the typical civil dispute where private litigants squabble over a sum of money." Rasmussen, 154 Ariz. at 223, 741 P.2d at 691. Thus, in Rasmussen, the court applied the clear-and-convincing-evidence standard to determine whether medical treatment for an incompetent person should be continued or terminated. Id.; see also Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 445, 850 P.2d 674, 683 (App.1993)

(following Rasmussen, higher evidentiary standard applied to decide guardian's petition to dissolve incompetent spouse's marriage).

¶ 13 Like the termination of medical treatment, a judicial bypass proceeding involves intensely personal interests. Moreover, any decision authorizing an abortion will have irreversible consequences unless the minor chooses not to proceed. For these reasons, a judicial bypass procedure falls within the exceptional category of matters that justifies use of the clear-and-convincing-evidence standard. See In re Petition of Anonymous 1, 558 N.W.2d at 787

(holding importance of issue and ex parte nature of judicial bypass proceeding justifies use of clear-and-convincing-evidence standard).

¶ 14 Third, and finally, the heightened standard is warranted because the judicial bypass procedure impacts a parent's opportunity to participate in making a significant decision involving his or her minor daughter. The Court has recognized that parents have a fundamental liberty interest in the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); see also Bellotti II, 443 U.S. at 637-38,

99 S.Ct. 3035 ("[I]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.") (Quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). In a proceeding that encroaches on a parent's ability to exercise this interest, a heightened standard of proof is warranted. See Akron II, 497 U.S. at 517-18,

110 S.Ct. 2972 (noting clear-and-convincing-evidence standard "ensures that the judge will take special care in deciding whether the minor's consent to an abortion should proceed without parental notification.").

¶ 15 With these general principles in mind, we now consider whether the juvenile court erred by ruling that B.S. failed to satisfy her burden under § 36-2152(B).

II.

¶ 16 B.S. claimed in her petition to the juvenile court that she was mature and capable of giving informed consent for an abortion. After a hearing, the court found that B.S. had not presented competent evidence to allow the court to conclude she was either sufficiently mature to give consent or that an abortion without consent from either...