T.W., In re, 89-893

• Decision Date: 12 May 1989
• Docket Number: No. 89-893,89-893
• Citation: 543 So.2d 837,14 Fla. L. Weekly 1192
• Parties: 14 Fla. L. Weekly 1192 In re T.W., a Minor.
• Court: Florida District Court of Appeals

Page 837

543 So.2d 837

14 Fla. L. Weekly 1192

In re T.W., a Minor.

No. 89-893.

District Court of Appeal of Florida,

Fifth District.

May 12, 1989.

Jerri Ann Blair of Carr & Blair, P.A., Leesburg, for appellant.

Richard W. Boylston, Tavares, Atty. Ad Litem.

Robert A. Butterworth, Atty. Gen., and Gerald B. Curington, Director, Gen. Legal Services, Dept. of Legal Affairs, Tallahassee, amicus curiae.

PER CURIAM.

T.W. appeals an order denying her petition for waiver of parental consent for the termination of her pregnancy. We hold that the judicial alternative to parental consent established by section 390.001(4)(a), Florida Statutes (Supp.1988) is unconstitutionally vague, as found by the trial court, and permits the arbitrary denial of a petition for waiver of parental consent. This procedure does not meet the requirements for a "judicial bypass" of parental consent as set forth in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976) and Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983) and therefore violates the constitutional right of privacy as enunciated in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and its progeny. Accordingly, we vacate the order below.

Section 390.001(4) provides that a physician shall obtain the written informed consent of the pregnant woman prior to terminating a pregnancy. If the pregnant woman is an unmarried minor, parental or judicial consent is also required:

(a)1. If the pregnant woman is under 18 years of age and unmarried, in addition to her written request, the physician shall obtain the written informed consent of a parent, custodian, or legal guardian of such unmarried minor, or the physician may rely on an order of the circuit court, on petition of the pregnant unmarried minor or another person on her behalf, authorizing, for good cause shown, such termination of pregnancy without the written consent of her parent, custodian, or legal guardian. The cause may be based on: a showing that the minor is sufficiently mature to give an informed consent to the procedure; the fact that a parent, custodian, or legal guardian unreasonably withheld consent; the minor's fear of physical or emotional abuse if her parent, custodian, or legal guardian were requested to consent; or any other good cause shown. At its discretion, the court may enter its order ex parte. If the court determines that the minor is sufficiently mature to give an informed consent to the procedure, the court shall issue an order authorizing the procedure without the consent of her parent, custodian, or legal guardian. If the court determines that the minor is not sufficiently mature, the court shall determine the best interest of the minor and enter its order in accordance with such determination.

The trial court must insure that a minor who files a petition for waiver of parental consent will remain anonymous and that the court proceedings remain confidential. The court must rule on the petition within 48 hours after the petition is filed unless the limitation is extended at the request of the minor. § 390.001(4)(a)2.

Florida Rule of Civil Procedure 1.612 was promulgated to govern these proceedings and provides in part as follows:

(b) Petition. ... The petition for termination of pregnancy shall state:

(1) The interest of the petitioner and his or her name and address.

(2) The date of birth of the minor.

(3) The name, last known address, and telephone number of the parents, custodian, or legal guardian of the minor.

(4) That the minor is under age of 18 years and unmarried.

(5) That the minor is pregnant.

(6) A short and plain statement of the facts and a reasonable basis for establishing any of the following:

(A) That the minor is sufficiently mature to give an informed consent to the procedure; or

(B) That consent of the parent, custodian, or legal guardian is being unreasonably withheld; or

(C) That the facts justify the minor's fear of physical or emotional abuse if her parent(s), custodian(s), or legal guardian(s) were requested to consent; or

(D) Any other good cause.

(c) Hearing. At the discretion of the court an order on the petition may be entered ex parte. If the court requires a hearing, it shall be held expeditiously. The clerk shall give notice to the minor and any petitioner on her behalf before the hearing.

(d) Judgment. The court shall enter a judgment within 48 hours after the petition is filed unless the time is extended at the request of the minor. The judgment shall recite findings in support of the ruling. If no judgment is entered within the time period, the petition shall be deemed granted and the clerk shall place a certificate to this effect in the file.

The Florida consent statute must be evaluated in light of the case law pertaining to abortion and parental consent which has evolved since the landmark case of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). In Roe v. Wade, the United States Supreme Court concluded that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action ... or ... in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 153, 93 S.Ct. at 727. This fundamental right to privacy extends to pregnant minors and likewise cannot be unconstitutionally burdened. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). See also H.L. v. Matheson, 450 U.S. 398, 419, 101 S.Ct. 1164, 1176, 67 L.Ed.2d 388 (1981), (Powell, J., concurring); Bellotti v. Baird, 443 U.S. 622, 639, 99 S.Ct. 3035, 3046, 61 L.Ed.2d 797 (1979).

In Planned Parenthood of Central Missouri v. Danforth, the Supreme Court, relying on Roe v. Wade, struck down the portion of a Missouri abortion law which required the consent of a parent or person in loco parentis of an unmarried minor during the first twelve weeks of pregnancy unless the abortion was certified by a physician as being necessary for the preservation of the mother's life. "Just as with the requirement of consent from the spouse, so here, the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." 428 U.S. at 74, 96 S.Ct. at 2843. The Court noted, however, that its holding did not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy.

Indeed, the majority of the Court has recognized that the state's interest in protecting immature minors will sustain a requirement of consent, either parental or judicial. It is clear, however, that the state must provide a procedure whereby a pregnant minor is able to demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interest. Planned Parenthood Association of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983); City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983).

In Ashcroft, a statute providing for an alternative to parental consent was held to be constitutional. ¹ That statute required that the minor file a petition stating that she has been fully informed of the risks and consequences of the abortion, that she is of sound mind and has sufficient intellectual capacity to consent to the abortion, and that if the court does not grant her majority rights for the purpose of consent to the abortion and if the court should then find that the abortion is in her best interest, it shall give judicial consent to the abortion. The statute further provided that a record hearing must be held on the merits of the petition and that the court must hear evidence relating to the emotional development, maturity, intellect and understanding of the minor; the nature, possible consequences, and alternative to the abortion; and any other evidence that the court may find useful in determining whether the minor should be granted majority rights for the purpose of consenting to the abortion or whether the abortion is in the best interests of the minor. 462 U.S. at 479 n. 4, 103 S.Ct. at 2519 n. 4.

The Court upheld the constitutionality of this statute by interpreting it to mean that the petition could be denied only upon a finding that the minor was not mature enough to make her own decision and that an abortion was not in her best interest. The procedure established by the statute insured that the court would hold a meaningful hearing and render a deliberative, informed and responsible decision, thus guarding against the possibility of an arbitrary determination. As the Supreme Court explained:

The Court of Appeals was aware, if the statute provides discretion to deny permission to a minor for any "good cause," that arguably it would violate the principles that this Court has set forth. Ibid. It recognized, however, that before exercising any option, the Juvenile Court must receive evidence on "the emotional development, maturity, intellect and understanding of the minor." Mo.Rev.Stat. § 188.028.2(3) (Supp.1982). The court then reached the logical conclusion that "findings and the ultimate denial of the petition must be supported by a showing of 'good cause.' " 655 F.2d at 858 [8 th Cir.1981]. The Court of Appeals reasonably found that a court could not deny a petition "for good cause" unless it found--after having received the required evidence--that the minor was not mature enough to make her own decision. See Bellotti II, 443 U.S., at 643-644, 647-648, 61 L.Ed.2d...