Opinion
Case No. 2D21-1333
05-13-2021
IN RE Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant
Rinky S. Parwani of Parwani Law, P.A., Tampa, for Appellant.
Rinky S. Parwani of Parwani Law, P.A., Tampa, for Appellant.
Jane Doe, a minor, petitioned the circuit court for a waiver of parental notice of and consent for termination of pregnancy. See § 390.01114, Fla. Stat. (2020) (providing that physicians performing abortions must notify and obtain the consent of a parent or legal guardian before terminating the pregnancy of a minor unless the notice requirement is waived by the circuit court). The circuit court dismissed the petition, finding that she had not shown sufficient maturity to decide whether to terminate her pregnancy or that the termination was in her best interest. See § 390.01114(6)(c)-(d). We must reverse.
In the circuit court, the minor chose to be identified by her initials rather than a pseudonym. We have elected to use this pseudonym in place of the minor's initials to further protect her privacy.
A minor seeking judicial waiver must prove, by clear and convincing evidence, that she is mature enough to decide whether to terminate her pregnancy or that it is not in her best interest to notify a parent or guardian and obtain consent for the termination. See id.; In re Doe, 153 So. 3d 925, 926 (Fla. 2d DCA 2014) ; In re Doe, 113 So. 3d 882, 888 (Fla. 2d DCA 2012) ; In re Doe, 67 So. 3d 268, 268 (Fla. 2d DCA 2011). "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." In re Doe, 153 So. 3d at 926 ; see also In re Doe, 113 So. 3d at 888.
Jane Doe is a sixteen-year-old high school student with a 3.5 grade point average who plans to attend college. She and her five-year-old brother live with her great aunt, who is her guardian. There are other children of various ages in the home, and Doe is regularly left in charge of the other children, including her six-month-old cousin, while her great aunt and the aunt's husband go out or spend weekends out of town. She explained that her pregnancy would be detrimental to her future plans. She also testified that her guardian, with whom she has resided since she was ten or eleven years old, would throw her out of the house if she learned of the pregnancy. She was confident this would happen because the guardian had thrown her older sister out at the age of seventeen when she became pregnant. Because her great aunt had made it clear that she would not be sympathetic to Doe's plight, Doe felt that she could not approach her great aunt, but she had discussed her situation with an adult sister and another aunt. She testified that both were supportive and would assist her in obtaining the abortion and with any medical care she might need. She testified she had researched what was involved in having the abortion and was aware of potential complications.
The dissent states Doe only focused on "near term" reasons for choosing not to have the baby. This is not accurate. Doe explained that she had "a lot of things I want to achieve in the future" and that she wanted to go to college. As for "near term" consequences, she explained that "I don't have any type of money, the type of support to give to a baby as the baby would need" and that she "had nobody" and could not support a baby.
Section 390.01114(6)(c)(1) provides a list of factors a trial court must consider when determining whether a minor is sufficiently mature. These factors include the minor'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 must include "factual findings and legal conclusions relating to the maturity of the minor" in view of these specific factors. § 390.01114(6)(e)(2).
The circuit court found that Doe was of average or above average intelligence, that she was stable and demonstrated appropriate emotional development for her age. The court noted that Doe had shown the ability to accept responsibility by her academic performance, her participation in school volleyball, and her babysitting responsibilities. The court found that Doe understood that a termination of the pregnancy could result in medical complications or affect her ability to have children in the future. The court also noted that Doe was confident that she would be able to turn to her older sister and another aunt in the event of a medical emergency.
The dissent does not acknowledge the circuit court's actual findings, all of which support a determination that Doe was both sufficiently mature to make this choice and that it was not in her best interest to require her to notify her great aunt. The dissent, while expressing concern that Doe is not mature enough to make this choice absent the opportunity to discuss it with a parent, fails to acknowledge the reality of Doe's situation. Doe has never had parents to turn to for advice. While not discussing her situation with her great aunt, she had discussed it with two trusted adult relatives – an aunt and a sister. The dissent also does not acknowledge the reality that Doe testified her great aunt had warned her "there's no babies coming up in this house," that if she was told Doe wanted an abortion she would say "that's you; I don't have nothing to do with that; go handle it on your own," and of course, the likelihood that Doe would be thrown out of the house for becoming pregnant just as her sister had been when she was seventeen.
The circuit court's findings all point to Doe's maturity, but the court took issue with what it characterized as Doe's shifting testimony regarding her great aunt's potential response to the pregnancy. This is not supported by the record. Doe was consistent in her testimony that her great aunt would kick her out of the house if she learned of the pregnancy. In concluding the circuit court's finding in this regard is supported by the record, the dissent makes the same error the trial court did – it fails to distinguish between when Doe is explaining her great aunt's reaction to learning she was pregnant versus her reaction to notice, or lack thereof, regarding an abortion.
Further, to the extent the circuit court believed Doe shifted her testimony regarding her great aunt's reaction, this would only be logically related to the court's determination regarding what is in the minor's best interest – not her maturity. The circuit court did not specify any basis for its finding that termination was not in the minor's best interest, so it is unclear whether this was the basis for that finding. If so, it is not supported by the record.
The court was also influenced by its belief that Doe had changed her testimony regarding possible long-term consequences of having an abortion. Again, this is unsupported by the record. The court believed that Doe had initially testified she wanted children in the future and then later said she did not want children. However, Doe never testified she wanted children in the future. In answer to a question about possible complications of the abortion, she testified that she knew it could present a risk to her ability to have children in the future if she ever found the right partner and decided she wanted children. Aside from these two concerns, every factor the circuit court evaluated pointed to Doe's maturity.
Under section 390.01114(6) a minor who meets her burden of proof is entitled to an order authorizing her to consent to the abortion. As this court has explained previously, "the circuit court's discretion is limited in the sense it must be exercised in a manner consistent with the applicable statute." Doe, 113 So. 3d at 889 ; see also Doe, 153 So. 3d at 926 ("Seemingly, Jane Doe met her burden; the circuit court found otherwise. We cannot and do not reweigh evidence. Rather, we must assess whether the circuit court abused its discretion in dismissing the petition." (footnote omitted) (citations omitted)). Because the statutory factors the circuit court addressed demonstrate the minor met her burden of proof, yet the circuit court denied the petition for reasons not supported by the record, we conclude the circuit court abused its discretion.
For these reasons, we reverse the circuit court's order, and Doe's petition for judicial waiver of the parental notification and consent required by section 390.01114 is granted. The clerk shall furnish Doe's counsel with a certified copy of this decision for immediate delivery to Doe so that she can deliver it to her physician. See Fla. R. App. P. 9.147. This court's mandate shall issue simultaneously with this opinion, and no rehearing motion shall be entertained.
Doe also argued in her brief that the circuit court erred by failing to appoint counsel at least twenty-four hours prior to the proceeding. As it is not necessary to reach this issue for the disposition of this appeal, we express no opinion as to the merits of this argument.
Reversed.
MORRIS, J., Concurs specially with opinion.
ATKINSON, J., Dissents with opinion.
MORRIS, J., specially concurring
These cases are always painful and tragic and require the utmost care, soul searching, and scrutiny. This one especially.
In this case, the unrebutted testimony showed that when Doe was born, Doe was immediately placed with her grandmother. Doe's mother had given birth to nine children, all of whom had been removed from her mother and placed in the "system." Her father has been incarcerated since she was five years old and remains so. Doe lived with her grandmother until age ten, when her grandmother died. After Doe's grandmother passed away, Doe was placed with her great aunt as a placement of apparent last resort.
Doe testified that her great aunt was indifferent to her from the beginning and has remained so such that there is no supportive and nurturing relationship between them. Her great aunt treats her as domestic help and a conscripted babysitter for the other children in the house so that her great aunt and her husband can engage in frequent recreational pursuits. Her great aunt treats Doe and Doe's biological brother differently than she treats her own grandchildren. Doe's great aunt has never been there for her and has never really cared. When asked what life is like with her great aunt, Doe said that she cries every day. Doe cannot talk to her great aunt, and Doe stays in her room when she is not doing her chores or caring for her little cousins. Doe said that her great aunt judges her, that her great aunt "goes off on" Doe and her brother, and that she yells at Doe and tears her down. Her great aunt does not sit down and talk with her like her great aunt does with the other children.
Doe's great aunt has made it abundantly clear, and has been consistent in this position, that she will not accept a baby into her household. She previously expelled Doe's older sister from her household when the sister became pregnant. Doe testified that her great aunt would make Doe "handle that on [her] own." Doe testified that she does not have "the type of support to give to a baby as the baby would need" and she would have nowhere to go. Doe believes that her great aunt would become angry and kick Doe out of the house if she found out Doe was pregnant, even if the great aunt knew that Doe planned to terminate the pregnancy.
Doe testified that the boy who impregnated her "didn't want to have anything to do with [her] after he found out that [she] was pregnant." He even gave her suggestions as to how she could "kill the baby." Except for Doe's twenty-five-year-old sister and another aunt, Doe has no one to look to for emotional support. She has confided to these two other women her predicament and her intentions in handling her situation. They said they would support Doe in whatever she decided to do.
Doe said that she does not want children in the future. This is no surprise, given her mother's track record of having nine children all of whom were removed from her as well as her experience in the great aunt's household.
Despite all of this evidence, the circuit court went to great efforts to parse and misstate Doe's testimony in a strained effort to find support to deny Doe's petition. It is clear from Doe's testimony that the circuit court abused its discretion in denying Doe's request to waive notification to the great aunt, which would be a useless act. Doe established by clear and convincing evidence that her great aunt is not nurturing or caring towards her and that her great aunt would kick her out if notified about the pregnancy; notification to Doe's great aunt would clearly not be in Doe's best interests. See § 390.01114(6)(d). The dissent in this case falls into the same trap the circuit court did and fails to see the reality of the situation.
Accordingly, I concur in reversing the decision of the circuit court.
ATKINSON, J., Dissenting.
I respectfully dissent. The circuit court did not abuse its discretion by ruling that the minor failed to establish by clear and convincing evidence that she is sufficiently mature to decide whether to terminate her pregnancy or that notification of, and consent from, her legal guardian is not in the minor's best interest. See § 390.01114(6)(b) 2, (c)–(d).
The circuit court discredited the minor's testimony that her legal guardian would kick her out of the house if the legal guardian became aware of the minor's pregnancy, and it based that credibility determination on perceived inconsistencies (albeit subtle) in the minor's testimony. Assessing that the minor "shifted her testimony in an attempt to predict what the court wanted to hear," the circuit court deemed it "untruthful." Cf. In re Doe, 153 So. 3d 925, 926 (Fla. 2d DCA 2014) (noting that the trial court "did not declare [the minor's] testimony unbelievable").
The minor provided equivocal testimony about her legal guardian's potential level of concern. For example, she explained that the guardian "really wouldn't care" if the minor had an abortion but that the guardian "would go off" if the minor "did this without letting [the guardian] know." "I'm afraid to tell her that I'm pregnant period, but if I was ... to tell her that I want an abortion she'll be that's you; I don't have nothing to do with that; go handle it on your own." By contrast, in response to clarifying questions from her attorney, the minor later asserted that the simple fact of the pregnancy itself would "tick [the guardian] off," regardless of whether the minor has "the abortion or the baby," and she would "get kicked out because of that reason." While no blatant conflicts in the minor's testimony leap off the pages of the transcript, the inconsistencies were apparent and corroborative of the credibility determination made by the circuit judge—whose vantage point affords her the ability to assess the demeanor of the witness and detect visual and verbal cues that might bear upon the veracity of the testimony being offered. See In re Doe, 204 So. 3d 175, 176 (Fla. 1st DCA 2016) ("Our review on appeal is highly deferential to the circuit court, due, in large part, to the confidential, non-adversarial nature of the proceeding below. The circuit court sits in a far better position to assess a minor's demeanor and credibility than this Court can upon review of the transcribed hearing." (citing In re Doe 13–A, 136 So. 3d 723, 733 (Fla. 1st DCA 2014) (Makar, J., dissenting))).
Given that the minor bears the burden in judicial waiver proceedings and that the role of reviewing courts is uniquely circumscribed, this court should not be quick to second-guess the trial court's record-supported assessment. See § 390.01114(6)(c)–(d) (requiring that, unless "the court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy" or "that the requirements of this section are not in the best interest of the petitioner," the court "must dismiss the petition," and that "[t]he reason for overturning a ruling on appeal must be based on abuse of discretion by the court and may not be based on the weight of the evidence presented to the circuit court since the proceeding is a nonadversarial proceeding" (emphasis added)); In re Doe, 204 So. 3d 175, 176 (Fla. 1st DCA 2016) ("The minor bears the burden of persuasion and, absent a judicial finding in her favor, the circuit court is required to dismiss the petition."). Having eliminated the prospect of the minor's ejection from her home upon disclosure of the pregnancy, the remaining evidence does not establish that the circuit court erred by finding that the minor did not carry her burden to prove that notifying her legal guardian and obtaining her consent would not be in her best interest. See In re Doe, 204 So. 3d at 176 ("In considering the denial of a petition for judicial waiver, this Court looks to whether the circuit court abused its discretion and may not reweigh the evidence presented below in order to reach a different result from the circuit court.").
And, unlike the majority, I see no reason to reject the circuit court's reliance on the minor's apparent prevarication as a factor in its determination of whether she is sufficiently mature. See § 390.01114(6)(c) 1 (including the minor's "[c]redibility and demeanor as a witness" as a factor in determining her maturity). The minor's lack of credibility is consistent with other evidence that she lacks the ability to think with sufficient foresight to be considered mature enough to make the decision to terminate the pregnancy without parental guidance. Reinforcing the narrow scope of the minor's perspective was that the only potential health risk she could identify for her decision not to carry the child to term was that it could jeopardize her future ability to have children (i.e., nothing about the risk of more immediate medical complications). Despite the minor's assertion that she "did a lot of research," the "only" risk of which she acknowledged awareness was "the possible risk of ... not having kids in the future." By contrast, when asked directly why she would choose abortion over adoption, she gave only conclusory answers and reasons focused on the near term (that she simply does not want to carry a baby for nine months or that, e.g., it would interfere with goals such as keeping her body in shape for volleyball).
And the conduct of the father of the child that is mentioned by my colleague in his specially concurring opinion—that the individual told "me how to kill the baby and that he didn't want have anything to do with and if I don't kill the baby he would never talk to me, but he wasn't pressuring me"—could as easily be perceived as evidence of undue influence in derogation of a finding of sufficient maturity. See § 390.01114(6)(c) 2 (listing as a factor "[w]hether there may be any undue influence by another on the minor's decision to have an abortion"). However, the trial court did not consider it as such in its determination of whether there had been undue influence, and it is unnecessary to my conclusion that the trial court's decision should be affirmed.
Further supporting the circuit court's opinion of the minor's immaturity was her prognostication—at the age of sixteen—that she would never want to have children: "I honestly don't want kids in the future." While the minor nodded to the possibility that she might "change [her] mind to have a kid in the future and [that an abortion] could affect that," it is not unreasonable for the circuit court to have been unpersuaded that this acknowledgment exhibited sufficient maturity to actually weigh the benefits and risks of a pregnancy termination:
The minor presents an inability to assess both the immediate and long-range consequences of her choices in this situation. The minor indicated she understood a termination of this pregnancy could affect her ability to have children in the future. Upon further questioning, the minor child indicated she does not want to have children in the future. The statements varied and appeared to the court an attempt to condition the response to what the child believed the court wanted to hear. The statements only lead the court to conclude the child does not understand the long-range consequences of her choice at this time.
The foregoing is representative of the adequate, written factual findings and legal conclusions justifying the circuit court's decision that the minor had not established by clear and convincing evidence that parental notification and consent would not be in her best interest or that she was sufficiently mature to make the decision. See § 390.01114(6)(e) 2. No authority cited by the majority compels the conclusion that the circuit court's reasoning in this case was impermissible, inadequately supported, or otherwise fatally flawed. See § 390.01114(6)(c) 1 (listing among other factors the minor's "[a]bility to assess both the immediate and long-range consequences of the minor's choices" and "[a]bility to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision"); cf. In re Doe, 153 So. 3d at 926 ("It is evident that the circuit court relied on its perceived flaws in the statutory procedure, rather than on an individualized assessment of Jane Doe's case, in dismissing the petition."). As such, I would affirm. See In re Doe, 139 So. 3d 428, 429 (Fla. 2d DCA 2014) ("In this case, we cannot say that the court's action was arbitrary or fanciful or that no reasonable person would take the action the court did.").
The minor—who was represented by appointed counsel at the hearing of which she did not request a continuance—did not provide any explanation for why she should be entitled to appellate relief for the unpreserved error of lack of the statutorily required notification of the right to court-appointed counsel and the provision of such counsel at least 24 hours prior to the proceeding. See § 390.01114(6)(a). Cf. Williams v. State, 209 So. 3d 543, 561 (Fla. 2017) ("[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.") (quoting State v. Johnson, 616 So.2d 1, 3 (Fla. 1993) ).