In re Jane Doe

• Citation: 113 So.3d 882
• Decision Date: 26 November 2012
• Docket Number: No. 2D12–5713.,2D12–5713.
• Parties: In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
• Court: Court of Appeal of Florida (US)

113 So.3d 882

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

Jane Doe, Appellant.

No. 2D12–5713.

District Court of Appeal of Florida,

Second District.

Nov. 26, 2012.

Ita M. Neymotin, Regional Counsel, Second District, and Eve Greenberg, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, 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 Harvey A. Kornstein, Circuit Judge of the Tenth Judicial Circuit, in and for Polk County, Florida, in Case Number 2012–DP–000536–0000–00, dismissing a petition for a judicial waiver of parental notice under section 390.01114(4)(c), (d), Florida Statutes (2012). The minor may consent to the performance or inducement of a termination of pregnancy without notice to a parent or guardian.

WALLACE, Judge.

Jane Doe,¹ a minor, challenges the final order dismissing her petition for judicial waiver of parental notification under section 390.01114(4)(c) and (d), Florida Statutes (2012). We find no error in the circuit court's determination that Doe failed to establish by clear and convincing evidence that it would not be in her best interest to notify a parent under section 390.01114(4)(d). However, we reverse the order of dismissal because the circuit court abused its discretion in concluding that Doe is not sufficiently mature to terminate her pregnancy under section 390.01114(4)(c).

I. THE FACTUAL AND PROCEDURAL BACKGROUND

At the hearing on the petition, Doe testified that she is seventeen years old. She will become eighteen years of age early in 2013. Doe is currently a senior in high school; she expects to graduate at the end of the school year. Doe receives A's and B's in her course work at school. She is not currently involved in any extracurricular activities.

Doe has planned an educational and career path. After graduating from high school, she plans to attend a community college first and then transfer to a four-year institution to complete her degree. After college, she hopes to obtain an advanced degree and to enter one of the professions.

Doe has already begun to implement her educational plan by arranging to take the Scholastic Aptitude Test (SAT) next year. She has also applied or is preparing to apply to two colleges within the State of Florida.

Doe lives in the Tenth Judicial Circuit with her mother and a younger sibling. She assumes a substantial amount of responsibility at home. Doe characterizes her relationship with her mother as “distant.” Doe's mother and father separated many years ago, and Doe does not have a significant relationship with her father.

Doe has never been employed, but she has recently submitted numerous applications for employment to various local businesses. During the summer, Doe performs volunteer work, which is related to her career interests, at a nonprofit institution. Doe has no savings. She receives a small weekly allowance from her mother that she uses for the purchase of clothing, personal items, and entertainment.

Doe became pregnant in an isolated incident following overindulgence in alcohol at the home of some acquaintances. Doe expressed regret about this incident in her testimony. At the time of the hearing, Doe had known for about two weeks that she was pregnant. Doe did not seem to have adult acquaintances in whom she could confide. However, she had spoken with a slightly older friend, who offered to help her. Doe had also spoken with the seventeen-year-old father with whom she has no continuing relationship. He was unable to help her financially, and he suggested that she seek an abortion. Doe stated that she does not feel pressure from anyone to seek an abortion and that the decision is her own.

At the time of the hearing, Doe had not yet consulted a physician about her pregnancy. She was scheduled to see a doctor the following week. Doe had considered both raising the child and seeking an abortion. She concluded that her educational and career goals and responsibilities at home were incompatible with having a child.

Doe discussed the possibility of having an abortion with a nurse at a local clinic. She was aware of the procedures available to her and expressed some understanding of the benefits and risks associated with each, as well as their cost. Doe did not anticipate experiencing an adverse emotional reaction from the procedure, but said that she would seek counseling if she did. In response to questions from the circuit court, Doe said that if she had a severe reaction to the procedure, she would go to the emergency room. For a less serious problem, she would return to the clinic. Doe testified that neither she nor her family have any religious beliefs or attitudes that would impact her decision to have an abortion. Nevertheless, she anticipated an extremely negative reaction from her mother if her mother was informed about Doe's pregnancy.

At the conclusion of the hearing, Doe affirmed that she has decided that she wants to terminate her pregnancy. If she is unable to have an abortion, then she plans to place the child for adoption.

The circuit court conducted the hearing on Doe's petition within the required time frame. After the conclusion of the hearing, the circuit court promptly entered an order dismissing Doe's petition, finding that she failed to prove by clear and convincing evidence either of the grounds alleged. This appeal followed.

II. THE APPLICABLE LAW

Under section 390.01114(3)(a), a physician is required to notify a minor's parent or legal guardian at least forty-eight hours in advance of performing an abortion on that minor. The statute excuses the notice requirement under five circumstances, but the pertinent provision applicable to this case provides for judicial waiver of the notice requirement in the event the minor successfully petitions a circuit court to waive that requirement. See§ 390.01114(3)(b)(5). This type of waiver, commonly referred to as a judicial bypass, must be granted if the circuit court 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 the [minor] is the victim of child abuse or sexual abuse inflicted by one or both of her parents or her guardian”; or (3) “by clear and convincing evidence[,] that the notification of a parent or guardian is not in the best interest of the [minor].” §§ 390.01114(4)(c), (d). Here, Doe based her petition on the grounds that she is sufficiently mature to decide whether to terminate her pregnancy and that notification of her parent is not in her best interest.

Historically, courts have struggled with defining the concept of maturity in the context of whether a minor is sufficiently mature to have an abortion without notifying her parents, noting that such a decision is “ ‘difficult, yet delicate and important.’ ” In re Doe, 973 So.2d 548, 551 (Fla. 2d DCA 2008) (quoting In re Doe 2, 166 P.3d 293, 295 (Colo.App.2007); Ex parte Anonymous, 806 So.2d 1269, 1274 (Ala.2001)). In Doe, 973 So.2d 548, this court discussed the difficulty inherent in this maturity determination, finding that the determination must be made on a case-by-case basis and examining the various ways other courts have defined maturity in this context. See id. at 551–52 (providing a myriad of factors other courts have considered in assessing the maturity of a minor). For example, one court noted:

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).

Doe, 973 So.2d at 551 (quoting H---- B---- v. Wilkinson, 639 F.Supp. 952, 954 (D.Utah 1986)).

In grappling with the definition of maturity, the First District said:

Factors which evidence sufficient maturity 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). Similarly, in 2010, this court, in evaluating maturity, examined the minor's age, her academic performance, her educational and career goals, her consultation of the father and an adult about her decision, her consultation of a medical professional, her understanding of the medical procedure and its side effects and risks, her contingency plan in the event of complications, her plan to pay for the abortion, and her consideration of alternatives to abortion. In re Doe, 36 So.3d 164, 165 (Fla. 2d DCA 2010).

The numerous...