In re Doe

Decision Date10 November 2005
Docket NumberNo. 2D05-5321.,2D05-5321.
PartiesIn re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
CourtFlorida District Court of Appeals

Randall C. Marshall, of ACLU Foundation of Florida, Inc., Miami; Rebecca Harrison Steele, of ACLU Foundation of Florida Inc., Tampa; and Penny Kfare Jacobs, Orlando, for Appellant.

BY ORDER OF THE COURT.

By the opinion attached, the Second District Court of Appeal has reversed the order entered by The Honorable Ellen Masters, Circuit Judge of the Tenth Judicial Circuit, in and for Polk County, Florida, in Case Number 53-2005DP-183892XX, dismissing a petition for a judicial waiver of parental notice of termination of pregnancy.

The minor may consent to the performance or inducement of a termination of pregnancy without notice to a parent or guardian.

NORTHCUTT, Judge.

A minor employing the pseudonym Jane Doe challenges a 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 reverse.

The proceeding below arose pursuant to section 390.01114, Florida Statutes (2005). That law requires a physician to notify a minor's parent or legal guardian at least 48 hours before performing an abortion on that minor. § 390.01114(3)(a). The statute excuses the notice requirement under five circumstances, one of them being that the minor has successfully petitioned a circuit court to waive it. § 390.01114(3)(b)(5). This type of provision, commonly referred to as a judicial bypass, has been deemed necessary to the constitutionality of statutes restricting the abortion rights of minors. See, e.g., Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (construing a statute requiring parental consent to a minor's abortion); Lambert v. Wicklund, 520 U.S. 292, 117 S.Ct. 1169, 137 L.Ed.2d 464 (1997) (construing parental notice statute under Bellotti standards); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 510-11, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Planned Parenthood Ass'n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462 (11th Cir.1991) (upholding Georgia parental notification statute as satisfying Bellotti criteria).

The Florida statute provides that the court must grant a judicial bypass petition if it finds (1) by clear and convincing evidence, that the minor "is sufficiently mature to decide whether to terminate her pregnancy"; (2) by a preponderance of the evidence, that there "is evidence of child abuse or sexual abuse of the petitioner by one or both of her parents or her legal guardian"; or (3) by a preponderance of the evidence, that "the notification of a parent or guardian is not in the best interest of the petitioner." § 390.01114(4)(c), (d). If the court does not find that any of these conditions have been met, it must dismiss the petition. Id. The statute further provides that, unless the minor requests an extension, the petition will be deemed granted if the court does not rule on it within 48 hours of its filing. § 390.01114(4)(b).

Doe petitioned the circuit court to waive the notice requirement on October 27, 2005. Employing a form petition devised for the purpose by Florida Rule of Juvenile Procedure 8.987, she alleged two of the statutory grounds for a judicial bypass: that she is sufficiently mature to decide whether to terminate her pregnancy and that notifying her parents prior to the procedure would not be in her best interest. The circuit court appointed counsel to assist Doe and, on October 28, held an evidentiary hearing at which Doe was the only witness.

Doe stated that she is 17 years old and that she will turn 18 in about a month.1 She has graduated from high school with an impressively high grade point average. She now attends a trade school in a nearby city, for which she has incurred student loans that she will have to repay after she completes her program. Doe lives at home with her parents, but she contributes to her living and automobile expenses with income from part-time employment. She testified that, in the past when she was able to work more, she helped to pay some of the family's general household expenses.

Doe testified that she is pregnant by her steady boyfriend, whom she plans to marry in the next year. She diagnosed her pregnancy after missing her menstrual period and taking a home pregnancy test. At the time of the hearing below she believed she was about six weeks pregnant, but she had no medical confirmation of this or, indeed, of the pregnancy itself. She and her boyfriend had visited a medical clinic to seek a termination of the pregnancy, but the clinic instead referred her to a juvenile justice program to obtain assistance in petitioning for a judicial waiver of the statutory parental notice requirement.

Doe's desire to terminate her pregnancy is "not at all" motivated by any pressure from her boyfriend, she testified. Rather, she said, at this time in her life she is not prepared for the struggle, financial or otherwise, associated with supporting a child. It would require her to work full-time and therefore to give up her educational endeavor, which in itself would create further difficulties in the future. Doe testified she is aware that an abortion poses medical risks, some of which are long-term and include the possibility that she could not bear children in the future. Acknowledging that her family's religion is Catholic, she testified that she has considered the religious and future emotional ramifications of her decision.

According to Doe, she has a good relationship with her parents. But she believes that they would adamantly oppose her decision. Beyond that, she testified that the issue might well destroy the relationship and that her parents might ask her to leave their home.

At the conclusion of the hearing, the circuit court dismissed the petition by an order in the form suggested by Florida Rule of Juvenile Procedure 8.991. The order stated:

The minor has not proven by sufficient evidence any of the criteria that would permit a judicial waiver of the parental notification requirement of Section 390.01114(3), Florida Statutes, for the following reasons:

The child currently resides with her parents and suspects that she is pregnant pursuant to a home pregnancy test. She has not consulted with a medical professional. She and her boyfriend went to a clinic to terminate her pregnancy and were advised to go to the ... County Justice Center for assistance in filing this proceeding. Further, the child recognizes that she enjoys a good relationship with her parents but is concerned that advising them of her pregnancy would cause the relationship to change. The child has not established that a waiver would be in her best interest.

The provisions set forth in Florida Statute § 390.01114(3)(b) are not applicable. The grounds set forth in § 390.01114(4)(c) have not been established by clear and convincing evidence. The grounds set forth in § 390.01114(4)(d) have not been established by a preponderance of the evidence, and in fact, are not applicable in this cause .. . .

Doe appealed on November 3, pursuant to Florida Rule of Appellate Procedure 9.110(n). As mandated by this rule—which provides that the order dismissing the waiver petition will be deemed reversed if we do not decide the appeal within 10 days after its filing—we have expedited our consideration of this matter.

We preface our discussion by noting that this is the first time this court has been called upon to address this parental notification statute. It was enacted by the 2005 legislature, ch. 2005-52, Laws of Fla., and became effective only on June 30, 2005. In re Amendments to the Florida Rules of Juvenile Procedure, 907 So.2d 1161 (Fla. 2005).2 There is scant Florida case law interpreting or applying it. However, Florida's statute is similar to several that have been adopted in other states, and we have been assisted by judicial interpretations of those laws.

Under the statute, our starting point must be the findings of fact set forth in the circuit court's order. Section 390.01114(4)(e) requires the court to "issue written and specific factual findings and legal conclusions supporting its decision." (Emphases supplied.) Requiring trial courts to set forth findings to support their rulings serves important purposes. In cases such as this, involving the application of a statute that so directly touches on an individual's constitutional right, requiring written findings helps to ensure that the decision has been reached strictly according to constitutionally permissible criteria. See In re T.W., 543 So.2d 837, 841 (Fla. 5th DCA) (holding that statute requiring parental consent to a minor's abortion was unconstitutional in part because its judicial bypass provision lacked procedural safeguards to avoid the "clear danger that trial judges will render a decision on the basis of their own moral, religious or political beliefs"), approved, 551 So.2d 1186 (Fla. 1989).

In this case, the findings included in the order are insufficient to serve this critical purpose. Manifestly, nothing in the order's few recited facts supports a conclusion that Doe is not sufficiently mature to decide whether to terminate her pregnancy or that she failed to prove that notifying her parents of her decision would not be in her best interest. The facts contained in the order might well be typical of the great majority of minors who would petition for a waiver under the statute. Certainly, it could be expected that most such petitioners live with their parents; many of them have learned of their pregnancies via commercially available tests administered at home; it may well be that many will have been directed to the courthouse by the very medical personnel they sought to consult. Finally, who can doubt that most minors—indeed, most adults—in Doe's position...

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26 cases
  • In re Doe
    • United States
    • Court of Appeal of Florida (US)
    • April 11, 2014
    ...parental notification in the minor's specific situation.” In re Doe, 973 So.2d 548, 553 (Fla. 2d DCA 2008); see also In re Doe, 932 So.2d 278, 285–86 (Fla. 2d DCA 2005) (identifying factors to be considered in determining whether parental notification is in the minor's best interest, includ......
  • In re Doe
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 2008
    ...and the possibility that notification may lead the parents to withdraw emotional and financial support from the minor. In re Doe, 932 So.2d at 285-86; see also In re Doe 2, 166 P.3d at 296; . In re Doe, 19 Kan.App.2d 204, 866 P.2d 1069, 1075 (1994) ; In re Doe 2, 19 S.W.3d at Here, the min......
  • In re Jane Doe
    • United States
    • Court of Appeal of Florida (US)
    • November 26, 2012
    ...at 165 (finding that a minor whose age is over seventeen is one factor supporting a petition to waive parental notice); In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005) (observing that “age bears positively on the [maturity] inquiry” when the minor is within months of reaching adulthood); D......
  • Derouin v. Universal Am. Mortg. Co.
    • United States
    • Court of Appeal of Florida (US)
    • August 22, 2018
    ...disregard record evidence that disproves the lower court's findings or that reveals its ruling to be an abuse of discretion." In re Doe, 932 So.2d 278, 284 (Fla. 2d DCA 2005).Because the trial court's grant of rehearing, which vacated the prior dismissal order and resulted in entry of a fin......
  • Request a trial to view additional results
1 books & journal articles
  • Judicial Bypass and Parental Rights After Dobbs.
    • United States
    • Yale Law Journal Vol. 132 No. 6, April 2023
    • April 1, 2023
    ...1994); In re Doe, 113 So. 3d 882, 889 (Fla. Disc Ct. App. 2012); In re Doe, 46 So. 3d 1172, 1174 (Fla. Dist. Ct. App. 2010); In re Doe, 932 So. 2d 278, 282 (Fla. Dist. Ct. App. 2005); In re Doe 10, 78 S.W.3d 338, 340-41 (Tex. (297.) In re A.W., 826 So. 2d 1280, 1281 (Miss. 2002). (298.) In ......

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