In re Doe

• Decision Date: 04 January 2008
• Docket Number: No. 2D07-5975.,2D07-5975.
• Citation: 973 So.2d 548
• Parties: In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
• Court: Florida District Court of Appeals

973 So.2d 548

In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy Jane Doe, Appellant.

No. 2D07-5975.

District Court of Appeal of Florida, Second District.

January 4, 2008.

Order Denying Rehearing En Banc January 23, 2008.

Rebecca Harrison Steele, ACLU Foundation of Florida, Inc., Tampa; Randall C. Marshall, ACLU Foundation of Florida, Inc., Miami; and Barbara J. Prasse, Tampa, for Appellant.

KELLY, Judge.

The appellant, a minor, challenges the final order dismissing her petition for judicial waiver of the statutory requirement that her physician notify her parent or guardian prior to terminating her pregnancy. We affirm because the minor has failed to carry her burden of proving the grounds for a waiver under section 390.01114, Florida Statutes (2007), alleged in her petition.

Section 390.01114(2)(a) requires a physician to notify a minor's parent or legal guardian at least forty-eight hours before performing an abortion on that minor. A minor may petition a circuit court to waive the notification requirement. § 390.01114(4)(a). Subsections (4)(c) and (d) of the statute establish three grounds for granting a waiver, two of which are pertinent here. Subsection (4)(c) provides for a waiver if the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy. Subsection (4)(d) provides for a waiver if the court finds, by a preponderance of the evidence, that the notification of a parent or guardian is not in the best interests of the minor.

The transcript of the hearing on the minor's petition is eleven pages in length, and the minor's testimony fills approximately six of those pages. In those six pages we learn that she is seventeen years old, lives with her parents, attends high school, plans to attend junior college and then transfer to a university "for maybe a pharmaceutical degree or a pediatrician," and earns grades that are "[a]verage, like A, B, and Cs." We also know that she has worked part-time at two different restaurants during the past year and a half. She explained to the court that she and the father of her child were using condoms when she became pregnant and she answered affirmatively when, asked by her attorney whether in her mind she was "doing everything ... under the circumstances to try and prevent this from happening."

The minor testified that she and her parents are Catholic and attend church every Sunday. She stated that if her parents knew that she was pregnant, "they would be upset with me" and that if they knew she had an abortion, "they would feel better that I took it into my own hands and showed responsibility." She did not want to tell them about the abortion now because she did not think they would understand "right now," but she planned to tell them in the future when she "felt comfortable with telling them what she did." The father of the child no longer speaks to the minor and has no interest in raising the child. When asked about abortion versus having the child and perhaps giving it up for adoption she explained that she "probably" would have to go to "some pregnancy school" rather than her regular school if she did that. She answered "yes" and "mm hm" when asked by her attorney whether she had "considered all alternatives to terminating her pregnancy" and had "given that long and thoughtful consideration."

As the party seeking an exception to the notification provision of the statute, the minor bears the burden of proof. See In re Estate of Livingston, 172 So.2d 619, 620 (Fla. 2d DCA 1965) (noting that "generally an exception to a statute must be proven by the one seeking to establish, it."); see also In re Doe, 932 So.2d 278, 285 (Fla. 2d DCA 2005) (recognizing that the statute requires the minor to prove maturity by clear and convincing evidence). After hearing the testimony outlined above, the trial court found that the minor had not adduced sufficient evidence to prove any of the criteria that would permit a judicial waiver of the parental notification requirement. We agree.

In arguing for reversal, the minor asserts that she is sufficiently mature to decide whether to terminate her pregnancy. The statute requires that she establish maturity by clear and convincing evidence. § 390.01114(4)(c). "Determining whether a minor is sufficiently mature to decide to have an abortion without notifying her parents is an inherently `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.'" In re Doe 2, 166 P.3d 293, 295 (Colo.Ct.App.2007) (quoting Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala. 2001)). The maturity of a pregnant minor must be determined on a case-by-case basis. Bellotti v. Baird, 443 U.S. 622, 643, n. 23, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (Bellotti II). In attempting to define maturity for the application of a bypass statute one court noted:

Maturity is "difficult to define, let alone determine...." Bellotti v. Baird, 443 U.S. 622, 643-44 n. 23, 99 S.Ct. 3035, 3048 n. 23, 61 L.Ed.2d 797 (1979) (commonly referenced as Bellotti II). Notwithstanding, determine it we must. While the U.S. Supreme Court has not explicitly defined "maturity" in the context of parental notification or consent statutes, it has observed that "minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them."`(Emphasis supplied.) Id., 443 U.S. at 635, 99 S.Ct. at 3043-44.

In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784, 787-88 (1997). Also citing Bellotti II, another court, in its attempt to define maturity, observed:

Manifestly, as related to a minor's abortion decision, maturity is not solely a matter of social skills, level of intelligence or verbal skills. More importantly, it calls for experience, perspective and judgment. As to experience, the minor's prior work experience, experience in living away from home, and handling personal finances are some of the pertinent inquiries. Perspective calls for appreciation and understanding of the relative gravity and possible detrimental impact of each available option, as well as realistic perception and assessment of possible short term and long term consequences of each of those options, particularly the abortion option. Judgment is of very great importance in determining maturity. The exercise of good judgment requires being fully informed so as to be able to weigh alternatives independently and realistically. Among other things, the minor's conduct is a measure of good judgment. Factors such as stress and ignorance of alternatives have been recognized as impediments to the exercise of proper judgment by minors, who because of those factors "may not be able intelligently to decide whether to have an abortion." Am. Coll. of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 296 (3d Cir.1984)

H___ B___ v. Wilkinson, 639 F.Supp. 952, 954 (D.Utah 1986) (footnote omitted). Similarly, another court has stated that when evaluating maturity, pertinent factors include, but are not limited to, the minor's physical age, her understanding of the medical risks associated with the procedure as well as emotional consequences, her consideration of options other than abortion, her future educational and life plans, her involvement in civic activities, any employment, her demeanor and her seeking advice or emotional support from an adult. In re Doe, 924 So.2d 935, 939 (Fla. 1st DCA 2006). After surveying the decisions of other courts, the Supreme Court of Texas wrote that those courts had

inquired into how a minor might respond to certain contingencies, particularly assessing whether the minor will seek counseling in the event of physical or emotional complications. Many courts have assessed the minor's school performance and activities, as well as the minor's future and present life plans. A few courts have explicitly assessed the minor's character and judgment directly. Most of the decisions have also considered the minor's job experience and experience handling finances, particularly assessing whether the minor is aware of the financial obligations inherent in raising a child. Almost all courts conduct the maturity inquiry, either explicitly or implicitly, against the background circumstances of the minor's experience. These include the minor's relationship with her parents, whether she has social and emotional support, particularly from the male who would be a father, and other relevant life experiences.

In re Doe 2, 19 S.W.3d 249, 256 (Tex.2000).

Further, in assessing maturity, the trial court "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." Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala. 2001). The criteria suggested by these cases, while not exhaustive, is consistent with the statutory mandate that the trial court hear evidence relating to "the emotional development, maturity, intellect, and understanding of the minor, and all other relevant evidence" and at a minimum, provides a sound starting point in attempting to determine whether a minor is sufficiently mature to decide whether to have an abortion. § 390.01114(4)(e).

The minor's testimony in this case tells us virtually nothing about her level of maturity. Significantly, the minor failed to demonstrate any knowledge regarding any specific immediate or long-term physical, emotional, or psychological risks of having an abortion. The record contains no evidence indicating that the minor was aware of, appreciated, or had seriously considered those risks. Nor is there any evidence that she sought advice or emotibnal support from any adult or that she had considered what she would...