Opinion
Case No. 2D21-818
03-23-2021
IN RE Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellant.
Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellant.
Jane Doe, a minor, challenges a final order dismissing her petition for judicial waiver of parental notification of termination of pregnancy. See §§ 390.01114(4)(b)5., (6), Fla. Stat. (2020). We reverse because the record does not support the circuit court's conclusion that Doe is not sufficiently mature to decide whether to terminate her pregnancy and because the circuit court failed to rule on Doe's claim that the termination of pregnancy without notification is in her best interest.
Doe used her initials below. We use "Jane Doe" herein to further protect the petitioner's privacy.
Section 390.01114(6) provides for judicial waiver of the notice requirement if the circuit court finds:
(c) "by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate her pregnancy,"
(d) [1] "by a preponderance of the evidence, that the petitioner is the victim of child abuse or sexual abuse inflicted by one or both of her parents or her guardian," or
(d) [2] "by clear and convincing evidence that the requirements of this section are not in the best interest of the petitioner."
In this case, Doe based her petition on the grounds that she is sufficiently mature to decide whether to terminate her pregnancy and that notification of her parents is not in her best interest. Thus, abuse is not a consideration in this case.
In examining whether the minor is sufficiently mature to decide whether to terminate her pregnancy, the court is required to consider 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.
§ 390.01114(6)(c)1. The statute also requires the circuit court to "[i]ssue a final written order containing factual findings and legal conclusions supporting its decision, including factual findings and legal conclusions relating to the maturity of the minor as provided under paragraph [(6)](c)." § 390.01114(6)(e)2.
The circuit court made no findings and announced no conclusions at the hearing. The order on appeal recites some, but not all, of Doe's testimony, and although it states that the court had considered the above statutory factors, the order contains no discussion or analysis indicating such consideration. We also note that simply listing the elements found in section 390.01114(6)(c) and declaring that the court has considered those factors is insufficient. See In re Doe, 113 So. 3d 882, 886 (Fla. 2d DCA 2012) (Doe 2012 ) ("Although the circuit court's order contains a recital that it has considered each of the factors outlined in section 390.01114[(6)(c)1], the order actually only addresses some of the statutory factors while ignoring others.").
Second, as we did in at least two earlier cases coming from the same circuit court, we conclude that the actual facts contradict the circuit court's conclusion that the child did not possess sufficient maturity to make this critical decision. See 113 So. 3d at 886-87 (examining the statutory factors "as a framework to address the circuit court's findings and conclusions in light of the record"); In re Doe, 36 So. 3d 164, 165 (Fla. 2d DCA 2010) (Doe 2010 ) ("The record contains undisputed evidence that supports the petition ....").
In this case, the record contains undisputed evidence that supports the petition: the minor is over sixteen years old and will be seventeen in less than three months; all of her classes at school are accelerated classes or A.P. classes, some of which qualify for college credit; she has firm plans to attend college; she has consulted the alleged father and has thoroughly researched the procedure, its possible side effects, and risks of complication; she articulated what she plans to do in the event she experiences any complications; she has investigated the cost of the procedure and will pay for the procedure, if necessary, with her savings and with the help of the father; and she has considered the alternatives to terminating the pregnancy. Although the order states that Doe appeared soft spoken and shy, that observation was not tethered to any rationale that would support a lack of maturity. Without more, this observation may simply be the court's perception of Doe's inherent personality traits, fear (i.e., stage fright–being before a judge for the first time), or deferential respect to the circuit court and the proceedings. More important, the order contains no findings, discussion, or conclusion with regard to credibility.
We note with some concern the circuit court's statement that Doe testified that "[s]he has not seriously considered or researched alternatives to termination." But Doe's testimony clearly refutes this in at least two places in the transcript: If she is unable to terminate her pregnancy, she will keep the child. She had consulted the father on this, and the father told her he would support her decision whatever it may be. She might have explained her decision not to consider adoption, but no one asked her (except once, in response to a confusing compound question, which she answered by saying she would keep the child), and she was represented by counsel.
As to Doe's ability to accept responsibility, she is the oldest of five siblings, and she helps her mother by cleaning, cooking, babysitting, helping her siblings with schoolwork, and getting them ready for school. She does this in a household where her mother also works and her father, who is physically present, is unavailable for support because of an illness. When one considers her home life in addition to the fact that she has a stellar GPA, volunteers as a teacher's aide and tutor, and still has time to participate in school-sponsored extracurricular activities, one can only marvel at the level of responsibility that this sixteen-year-old has undertaken, not to mention her obvious time management skills. As to employment, Doe stated that she had been attempting to find work without success, but she attributed her inability to find work to the state of the economy due to the current pandemic and that many potential employers seem to want someone who already has experience.
Finally, we note that Doe's petition also sought judicial waiver on the basis that the notice requirements were not in the minor petitioner's best interest. See § 390.1114(6)(d). The circuit court failed to consider or rule upon this claim at all.
Accordingly, we must reverse the circuit court's order, and Doe's petition is deemed granted. See Fla. R. App. P. 9.147(d), (g). The clerk shall place a certificate to this effect in the file and provide Doe with a certified copy. This court's mandate shall issue simultaneously with this opinion, and no motion for rehearing will be entertained.
Reversed.
SILBERMAN, J., Concurs.
ATKINSON, J., Dissents with opinion.
ATKINSON, J., Dissenting.
I respectfully dissent. The record reflects that the circuit court did not abuse its discretion by denying a waiver based on the grounds asserted in the petition. See § 390.01114(6) (requiring in relevant part 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)). Regarding the circuit court's failure to include an explicit conclusion of law regarding whether the requirements of the notice statute are in the petitioner's best interest, I would remand for the court to make such a finding. See § 390.01114(6)(b)2. ("An appellate court must rule within 7 days after receipt of appeal, but a ruling may be remanded with further instruction for a ruling within 3 business days after the remand.").