In re Petition for Judicial Waiver Notice

• Decision Date: 18 January 2022
• Docket Number: 2D22-51
• Citation: 333 So.3d 265
• Parties: IN RE PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE AND CONSENT OR CONSENT ONLY TO TERMINATION OF PREGNANCY. Jane Doe, Appellant.
• Court: Florida District Court of Appeals

333 So.3d 265

IN RE PETITION FOR JUDICIAL WAIVER OF PARENTAL NOTICE AND CONSENT OR CONSENT ONLY TO TERMINATION OF PREGNANCY.

Jane Doe, Appellant.

No. 2D22-51

District Court of Appeal of Florida, Second District.

January 18, 2022

Rinky S. Parwani of Parwani Law, P.A., Tampa, for Appellant.

CASANUEVA, Judge.

Jane Doe,¹ a minor, challenges the final order dismissing her petition for judicial waiver of parental consent under section 390.01114(6), Florida Statutes (2021).²

The Petitioner is a seventeen-year-old junior in high school. She testified that she has a 2.0 GPA "right now" but also testified that she is making Bs. Upon graduation, she plans to go into the military and then to college to ultimately go into nursing.

The Petitioner has been working for the past year and has had three jobs during that time. Over the summer, she was working two of those jobs at once. The Petitioner's father drives her to work; she does not have a driver's license or learner's permit because her parents will not put her on their insurance and although she offered to pay for it, they would not let her.

The Petitioner has two credit cards and $1,600 in savings. She testified that although her mother pays her cellphone bill, she uses her own money "to pay for everything else for me, like clothes, nails, and all the other necessities." She later agreed with the court that she lives at home, that her parents provide her with housing and food, and that she uses her own money just to buy things beyond what her parents are willing to buy for her and also to "set[ ] [her] up to live on [her] own with saving."

The Petitioner does basic chores around the house. She does not take care of any younger siblings, but the evidence established that she has none.

The Petitioner testified that she has talked to her mother about birth control but that her mother lives out of state. The Petitioner lives with her father, who does not believe in abortion except in cases of rape. She believes that both of her parents would urge her to keep the baby if they found out that she wanted an abortion.

The Petitioner testified that she did not know of any medical problems that could make her pregnancy more difficult. She has never been treated for any mental illness. She testified that she wants an abortion because she is not yet financially stable and that she wants to be able to be on her own first.

The Petitioner denied that anyone is pressuring her to have an abortion. She has told her boyfriend (the father), her boyfriend's mother, her best friend, and her friend's mom about her pregnancy. She and her boyfriend have been together for more than a year, and he supports her decision to have an abortion. The Petitioner testified that her boyfriend's mother has a nursing background, but the Petitioner could not provide any details. From the Petitioner's testimony, it is clear that she has relied primarily on her boyfriend's mother for advice.

The Petitioner testified that she had discovered that she was pregnant while out of town and that after returning to Tampa, she had gone to a women's health clinic, but they would not talk to her unless she had obtained a judicial bypass. The Petitioner testified that when she is able to return to the clinic, she wants to get a check-up and have a sonogram

done and then the pill will be explained.

When asked about the side effects of the procedure, the Petitioner testified that she had used Google to get information because the clinic would not explain anything unless she had been granted a judicial bypass. She acknowledged that Google is not always reliable. Finding the clinic's website online, she learned that risks of taking the pill include depression and the need for surgery if it does not work right. In her later testimony, she also identified abnormal bleeding and abdominal cramping and pain as possible risks. She described "abnormal" as anything over seven days. She said that she would go to the doctor if she was still having blood clots

after the "fourth or sixth day." She said that according to the clinic's website, after she is ten weeks pregnant, she will no longer be able to take the pill and will have to have surgery instead. She said that she wants to be able to talk to the doctors at the clinic "to make sure [she] fully understand[s] anything—everything before [she] go[es] through with it."

The Petitioner testified that long-term risks from the procedure could be difficulty having children in the future "when [she's] ready" because of an increased risk of miscarriages and also irregular periods. The Petitioner testified that if she were to miscarry in the future, she would just "deal with [the] consequences, unless it's fairly significant and [she had] to go to the hospital." She testified that she had talked to her boyfriend's mother about possible side effects. The Petitioner testified that she has been set on getting the pill and admitted that she is not as familiar with the procedure and possible side effects and long-term risks if she is instead required to have surgery, although she did not seem to think that the side effects and risks would be much different.

The Petitioner testified that her boyfriend will drive her to and from the clinic and his mother will pay for the procedure. The Petitioner stated that if she has any physical or mental issues after the procedure, she will talk to her boyfriend's mother, who is "the one who has been helping [her] all through this." She testified that if she has difficult feelings after having the abortion, she will "[j]ust keep moving [and] do things that get my mind off of it." She testified that she will also reach out to her boyfriend's mother and her best friend. She testified that her plan is to call out of work for a few days and have someone cover her shifts to allow her time to recover.

The Petitioner testified that abortion is inconsistent with her religious beliefs and that she has considered adoption but ultimately "decided to do the abortion because I'm not going to have a baby for nine months and then get attached." The Petitioner testified that she has not spoken with anyone about adoption but that she "just [didn't] want to do that to [herself]" and that she "[felt] like that would hurt [her] more mentally than this." She understood that even if she is granted a judicial bypass, however, she is not required to go through with having an abortion.

Section 390.01114(6)(c) requires the circuit court to ascertain whether there is clear and convincing evidence "that the minor is sufficiently mature to decide whether to terminate her pregnancy."

"The petitioner need not show that she has the maturity of an adult to satisfy the statute." In re Doe , 967 So. 2d 1017, 1018 (Fla. 4th DCA 2007) (citing In re Jane Doe 06-A , 932 So. 2d 499, 500 (Fla. 1st DCA 2006) ). Rather, the petitioner "need only show that she has the necessary emotional development, intellect and understanding to make an informed decision regarding the termination of her pregnancy." Id. (citing In re Jane Doe 06–A , 932 So. 2d at 500 ); see also In re Doe , 319 So. 3d 184, 185 (Fla. 2d DCA 2021) ("The minor need not possess the same maturity as an adult, but she must demonstrate that she is sufficiently mature to make this important decision." (quoting In re Doe , 153 So. 3d 925, 926 (Fla. 2d DCA 2014) )). "[A] minor who meets her burden of proof is entitled to an order authorizing her to consent to the abortion." Id. at 187. The circuit court's discretion, in considering her petition, "is limited in the sense it must be exercised in a manner consistent with the applicable statute." Id. (quoting In re Doe , 113 So. 3d 882, 889 (Fla. 2d DCA 2012) ).

In Jane Doe's petition for judicial waiver of parental consent she asserted she was sufficiently mature and explained she is "way to[o] young" to be a parent, she did not possess a sufficient income, and if not permitted to terminate her pregnancy, she would not be able to pursue her goal of entering the military.³ The circuit court held an evidentiary hearing on the petition and thereafter issued its final order dismissing the petition.

Pursuant to section 390.01114(6)(c) 1, a circuit court is required to consider several factors in determining whether a petitioner is sufficiently mature to make the decision to terminate her pregnancy, including the petitioner's:

a. Age.

b. Overall intelligence. c. Emotional development and stability.

d. Credibility and demeanor as a witness.

e. Ability to accept responsibility.

f. Ability to assess both the immediate and long-range consequences of the minor's choices.

g. Ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision.

The circuit court's order shall include "factual findings and legal conclusions supporting its decision, including factual findings and legal conclusions relating to the maturity of the minor" in view of these specific factors. § 390.01114(6)(e) 2.

In the present case, the circuit court noted that the Petitioner is seventeen years old. However, addressing her "overall intelligence," the court found her intelligence to be less than average because "[w]hile she claimed that her grades were ‘Bs’ during her testimony, her GPA is currently 2.0. Clearly, a ‘B’ average would not equate to a 2.0 GPA." The court reasoned, "Petitioner's testimony evinces either a lack of intelligence or credibility, either of which weigh against a finding of maturity pursuant to the statute."

Initially, we observe a "C" average demonstrates average intelligence for a high school student. Next, we examine the transcript. Upon the conclusion of questioning by her attorney, the circuit court initiated its wide-ranging inquiry.

There is authority supporting a role for the trial judge to clarify ambiguous testimony. "The requisite of a neutral factfinder does not foreclose a judge from asking questions designed to make prior ambiguous testimony clear. But that

...