Petition of Anonymous 1, No. S-33-960027

CourtSupreme Court of Nebraska
Writing for the CourtWHITE; PER CURIAM; If a pregnant woman elects not to notify her parent, a judge ... shall, upon petition or motion and after an appropriate hearing; WHITE; CAPORALE
Citation251 Neb. 424,558 N.W.2d 784
PartiesIn re PETITION OF ANONYMOUS 1, a Minor.
Decision Date10 January 1997
Docket NumberNo. S-33-960027

Page 784

558 N.W.2d 784
251 Neb. 424
In re PETITION OF ANONYMOUS 1, a Minor.
No. S-33-960027.
Supreme Court of Nebraska.
January 10, 1997.

Page 785

Syllabus by the Court.

1. Abortion: Minors: Judgments: Appeal and Error. In an appeal brought under the provisions of Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.1994), the Nebraska Supreme Court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue; however, it considers, and may give weight to, the fact that the judge below heard and observed the witnesses.

2. Abortion: Minors: Proof. In a proceeding brought under the provisions of Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.1994), the burden of proof on all issues rests with the pregnant woman, and such burden must be established by clear and convincing evidence.

3. Abortion: Minors. As related to a pregnant woman's abortion decision, maturity is not solely a matter of social skills, level of intelligence, or verbal skills, but, more importantly, a matter of experience, perspective, and judgment; the factors for determining experience include, but are not limited to, a pregnant woman's prior work experience, experience in living away from home, and experience in handling personal finances; the factors for determining perspective include, but are not limited to, a pregnant woman's appreciation and understanding of the relevant 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; the factors for determining good judgment include, but are not limited to, a pregnant woman's past conduct and being fully informed so as to be able to weigh alternatives independently and realistically.

4. Courts: Justiciable Issues. A court decides real controversies and determines rights actually controverted, and does not address or dispose of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting.

[251 Neb. 425] Judith A. Zitek, Omaha, for petitioner.

WHITE, C.J. and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

Page 786

PER CURIAM.

I. INTRODUCTION

This proceeding was instituted under the provisions of Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.1994) by a pregnant 13-year-old minor seeking authorization for her physician to perform upon her an abortion "without prior notification being required or given to her parent(s)...." The judge below entered an order denying such authorization, finding that the petitioner "is not a mature minor and is not capable of giving informed consent to the proposed abortion, and it is not in the best interests of the [p]etitioner for the physician to perform the proposed abortion upon her without prior notification to her parent(s)...." The minor asserts in this court, in essence, that the judge below erred in each of the foregoing findings.

II. DE NOVO REVIEW

Section 71-6904(6) provides that we hear this appeal de novo on the record. Accordingly, we reappraise the evidence as presented by the record and reach our own independent conclusions with respect to the matters at issue. However, we consider, and may give weight to, the fact that the judge below heard and observed the witnesses. See, Schuelke v. Wilson, 250 Neb. 334, 549 N.W.2d 176 (1996); Gustin v. Scheele, 250 Neb. 269, 549 N.W.2d 135 (1996); Thiltges v. Thiltges, 247 Neb. 371, 527 N.W.2d 853 (1995).

The relevant portions of § 71-6902 provide that no "abortion shall be performed upon a pregnant woman until at least forty-eight hours after written notice of the pending abortion has been delivered ... to the parent...." "Pregnant woman" is defined in pertinent part as "an unemancipated woman under eighteen years of age who is pregnant...." § 71-6901(5). "Parent" means "one parent or guardian of the pregnant woman selected by the [251 Neb. 426] pregnant woman." § 71-6901(3). Furthermore, § 71-6903(1) provides:

If a pregnant woman elects not to notify her parent, a judge ... shall, upon petition or motion and after an appropriate hearing, authorize a physician to perform the abortion if the court determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion. If the court determines that the pregnant woman is not mature or if the pregnant woman does not claim to be mature, the court shall determine whether the performance of an abortion upon her without notification of her parent would be in her best interests and shall authorize a physician to perform the abortion without such notification if the court concludes that the best interests of the pregnant woman would be served thereby.

The evidence demonstrates that the minor herein is a ninth grade high school student who lives with both of her parents. She suspected she was pregnant after she missed her menstrual period, and she later confirmed her suspicion by taking two pregnancy tests, at least one of which was of the type administered at home.

The minor performs household chores and has saved the money she earned this past summer detasseling corn, putting the money in the bank. She is currently unemployed and testified that she earns A's and B's in school. She hopes to go to college and may possibly become a nurse.

She has not discussed sexual matters with her parents and has not told them of her pregnancy. She testified that she feels pretty close to her mother, but she fights "a lot" with her father. She said that on two separate occasions, her father threatened to kick her out of the house if she got pregnant at a young age. She takes these threats seriously and does not believe her father is merely trying to emphasize his concern or feelings about her becoming pregnant. At one point, the minor testified that she does not confide in either of her parents, but later admitted that she sometimes tells them about her feelings.

She has been advised of and has considered her alternatives, including adoption, testifying:

[251 Neb. 427] [COURT]: Have you discussed the procedure with any medical person?

[MINOR]: Well, I went to Planned Parenthood and talked to them about it.

[COURT]: All right. Did they discuss any medical risks that are involved?

Page 787

[MINOR]: No, but I got booklets on it and read about them.

[COURT]: Okay. But Planned Parenthood didn't discuss it with you?

[MINOR]: ( [Minor] nods head in the affirmative.)

[COUNSEL]: Your Honor? Did you speak with Sherry Ham?

[MINOR]: Yeah.

[COUNSEL]: Didn't she go through the procedure you are going to have and tell you what--the possibilities you might suffer?

[MINOR]: Yeah.

[COURT]: What do you understand are any risks that are involved?

[MINOR]: Well, I hear you have bad cramps or you may get something up inside you that could cause risks.

The minor has also discussed her pregnancy with her 25-year-old married sister, who is herself the mother of a young child. The sister assisted the minor in purchasing a home pregnancy test and has discussed with the minor the risks involved in an abortion, as well as alternatives to abortion, testifying that she has given the minor all the information she could so as to assist her in making an informed choice.

The sister also testified that when she lived with her parents, she was afraid of her father and is sure that he would kick the minor out of the house if he discovered that she is pregnant. In fact, the father has told the sister that if the minor becomes pregnant, she will be out of the house. In the sister's view, her father, who is "very firm in his ways," would consider the matter an embarrassment to the family, and the fact that the person who impregnated the minor lives in the neighborhood would make the situation a "neighborhood tragedy." The sister thought her mother would likely go along with her father's decision.

[251 Neb. 428] The minor considers herself too young and not responsible enough for childbirth and testified that she "wouldn't be able to go through that." She is of the opinion that it is in her best interests to have an abortion and that she has made a mature decision. The sister also believes that it is in the minor's best interests to have an abortion.

Having reviewed the evidence, the determination to be made at this point is where the burden of proof lies. The U.S. Supreme Court has ruled that the state is not required, in a proceeding to judicially bypass parental notification requirements, to bear the burden of proof on the issues of maturity and best interests. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990).

Therefore, in keeping with our general rule that it is the party asserting the affirmative of an issue that bears the burden of proof on that issue, see Alliance RR. Comm. Credit Union v. County of Box Butte, 243 Neb. 840, 503 N.W.2d 191 (1993), we hold that in a proceeding brought under the provision of the statutes here involved, the burden of proof on all issues rests with the pregnant minor. Furthermore, § 71-6903 does not specify the requisite standard of proof. Considering the magnitude of the decision at issue, the fact that the proceedings are ex parte in nature, and recognizing that any evidence will usually satisfy the preponderance of the evidence standard, we think it necessary that the pregnant minor establish, by clear and convincing evidence, her maturity or that the performance of an abortion upon her without parental notification is in her best interests. This heightened evidentiary standard is consonant with those federal constitutional concerns addressed in Ohio v. Akron Center for Reproductive Health, supra, and consistent with this court's past decisions where we required a heightened evidentiary standard to protect a constitutional interest when none was specified in the statutory text. State v....

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12 practice notes
  • In re Jane Doe, No. 00-0224
    • United States
    • Court of Appeals of Texas
    • June 22, 2000
    ...a burden of proof similar to the "clear and convincing" standard the Nebraska Supreme Court adopted in In re Petition of Anonymous 1, 558 N.W.2d 784, 787 (Neb. 1997). But the Nebraska court was free to adopt a heightened burden of proof because the Nebraska legislature did not articulate a ......
  • In re Kantril P., No. S-98-756.
    • United States
    • Supreme Court of Nebraska
    • August 13, 1999
    ...of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting. In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784 (1997). Carlotta's argument on this assignment of error is limited to the facts of this case, which means her "coextensive role"......
  • In re Doe, No. 2D05-5321.
    • United States
    • Court of Appeal of Florida (US)
    • November 10, 2005
    ...review is based on a de novo standard. See In the Matter of B.S., 205 Ariz. 611, 74 P.3d 285 (2003); In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784 (1997). The petitioner here argues that this court should apply the "clear error" test to the trial court's findings of fact and r......
  • In re Doe, No. 2D07-5975.
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 2008
    ...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, Manifestly, as related to a mino......
  • Request a trial to view additional results
12 cases
  • In re Jane Doe, No. 00-0224
    • United States
    • Court of Appeals of Texas
    • June 22, 2000
    ...a burden of proof similar to the "clear and convincing" standard the Nebraska Supreme Court adopted in In re Petition of Anonymous 1, 558 N.W.2d 784, 787 (Neb. 1997). But the Nebraska court was free to adopt a heightened burden of proof because the Nebraska legislature did not articulate a ......
  • In re Kantril P., No. S-98-756.
    • United States
    • Supreme Court of Nebraska
    • August 13, 1999
    ...of abstract questions or issues that might arise in a hypothetical or fictitious situation or setting. In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784 (1997). Carlotta's argument on this assignment of error is limited to the facts of this case, which means her "coextensive role"......
  • In re Doe, No. 2D05-5321.
    • United States
    • Court of Appeal of Florida (US)
    • November 10, 2005
    ...review is based on a de novo standard. See In the Matter of B.S., 205 Ariz. 611, 74 P.3d 285 (2003); In re Petition of Anonymous 1, 251 Neb. 424, 558 N.W.2d 784 (1997). The petitioner here argues that this court should apply the "clear error" test to the trial court's findings of fact and r......
  • In re Doe, No. 2D07-5975.
    • United States
    • Court of Appeal of Florida (US)
    • January 4, 2008
    ...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, Manifestly, as related to a mino......
  • Request a trial to view additional results

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