Opinion
No. 1D2023-3326
02-08-2024
IN RE: Jane DOE 23-B, Appellant.
Candice K. Brower, Criminal Conflict and Civil Regional Counsel, and Ronald Newlin, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
On appeal from the Circuit Court for Leon County. Lance Eric Neff, Judge.
Candice K. Brower, Criminal Conflict and Civil Regional Counsel, and Ronald Newlin, Assistant Regional Conflict Counsel, Tallahassee, for Appellant.
Rowe, J.
This appeal follows the circuit court’s dismissal of a petition for judicial waiver of the parental consent and notification requirements for a minor to terminate her pregnancy under section 390.01114, Florida Statutes (2023). The sole party before this Court is the minor denied a judicial waiver. We have been asked to exercise our appellate judicial power to review what purports to be a final judgment of a circuit court. We must decline. Because this matter lacks an appellee, there is no justiciable controversy before the Court. And without such a controversy, we may not exercise the appellate judicial power granted us under article V of the Florida Constitution. We, therefore, dismiss the appeal.
To explain why this matter is not justiciable, we begin with a discussion of the nature of and division of the powers granted to and exercised by the judicial branch and the other branches of our government. A strict separation of powers doctrine is codified in Florida’s constitution. See Art. II, § 3, Fla. Const.; State v. Cotton, 769 So. 2d 345, 358 (Fla. 2000) ("This Court … in construing the Florida Constitution, has traditionally applied a strict separation of powers doctrine."). Article II, section 3, provides that "[n]o person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided" elsewhere in the Florida Constitution.
The sovereign powers of Florida’s government are then divided and described in articles III, IV, and V of the Florida Constitution. Article III, vests the legislative power in the Florida Legislature. Art. III, § 1, Fla. Const. Article IV vests the supreme executive power in the governor and other executive power in the lieutenant governor, cabinet, and executive departments. Art. IV, §§ 1-5, Fla. Const. And article V, section 1 vests the courts with the judicial power of the state.
Despite the strict separation of powers in article II, section 3, several provisions of the constitution confer "quasi-judicial," "quasi-executive," and "quasi-legislative" powers among the three branches. For example, article V provides for the exercise of "quasi-judicial" power by certain legislative or executive branch officers. See Art. V, § 1, Fla. Const. (providing for the exercise of "quasi-judicial power" by "[c]ommissions established by law, or administrative officers or bodies" as to "matters connected, with the functions of their offices"); Fla. Motor Lines v. R.R. Comm’rs, 129 So. 876, 881 (Fla. 1930) (observing that the Legislature may enact laws authorizing "administrative officers to perform quasi legislative or quasi judicial functions that are designed to effectuate a valid legislative purpose"); cf. Burnett v. Greene, 97 Fla. 1007, 122 So. 570, 576 (1929) (explaining that administrative agencies may "exercise functions judicial in their nature" but emphasizing that "the fact that some bodies possess to some extent judicial powers does not necessarily make such body a court within the meaning of the Constitution"). Similarly, several constitutional provisions authorize the supreme court to exercise quasi-legislative or quasi-executive powers. See Art. III, § 16(f), Fla. Const. (providing for the supreme court to exercise quasi-legislative power in judicial reapportionment); Art. IV, § 1(c), Fla. Const. (providing for the supreme court to exercise quasi-executive power in rendering advisory opinions to the governor); Art. IV, § 10, Fla. Const. (providing for the supreme court to exercise quasi-executive power in rendering an opinion to the attorney general as to the validity of an initiative petition); Art. V, § 9, Fla. Const. (providing for the supreme court to exercise quasi-legislative or quasi-executive power when certifying the need for judges and courts or certifying the need to redraw circuit or district boundaries).
But despite authorizing the supreme court to perform some nonjudicial functions, no provision in the Florida Constitution permits a district court (or any other article V court) to exercise any power other than the judicial power set out in article V or to perform the function of any other branch of government. See Ready v. Safeway Rock Co., 157 Fla. 27, 24 So. 2d 808, 810 (1946) (Brown, J., concurring specially) ("The power vested in the courts by Article V of the Constitution is judicial power.").
What, then, is the judicial power granted to a district court under our constitution? Article V, section 4(a) tells us that "[t]hree judges shall consider each case and the concurrence of two shall be necessary to a decision." Art. V, § 4(a), Fla. Const. Section 4(b) then describes the jurisdiction of the district courts, including our authority to hear appeals "from final judgments or orders of trial courts." Art. V, § (4)(b)(1), Fla. Const.; see State v. Hull, 37 Fla. 579, 20 So. 762, 763-64 (1896) (characterizing a proceeding on a writ of error, the precursor to the present-day appeal, as "less an action between the original parties than a question between the judgment and the law"); Atlantic Coast Line R.R. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 So. 529, 532 (1906) (Shackleford, C.J., concurring) ("[T]he primary object of a writ of error is not to try the question between the parties, but rather to try the judgment of the court below—to test the judgment by the law. It is not the action to be tried, but the judgment.") (internal quotation and citation omitted), Based on these provisions, two fundamental elements are necessary for a district court to exercise its judicial power: a case for the court to consider and jurisdiction to hear it.
[1–3] As for jurisdiction, "[d]istrict courts are courts of limited jurisdiction and may only exercise the jurisdiction conferred on them by the Florida Constitution." Apthorp v. Detzner, 162 So. 3d 236, 240 (Fla. 1st DCA 2015) (citing Caufield v. Cantele, 837 So. 2d 371, 374 (Fla. 2002)). We recognize that our court and other district courts have exercised appellate jurisdiction to consider many appeals from circuit court rulings denying judicial waivers under section 390.01114 and its predecessors. Even so, none of Florida’s district courts have addressed in a written opinion our jurisdiction to exercise appellate judicial power in cases arising under the judicial waiver statute or whether such cases present justiciable controversies. Cf. Petition of Anonymous 1, 251 Neb. 424, 558 N.W. 2d 784, 792 (1997) (Caporale, J., dissenting) (explaining that Nebraska’s supreme court had no jurisdiction to consider the appeal from an order denying a judicial waiver because "there can be no case or controversy where the proceeding contemplates that only the minor’s interests be presented to the court"). We do so now, understanding our independent duty "to examine our jurisdiction in every case even if, as here, the issue was not raised." Wade v. Fla. Dep’t of Child. & Fams., 57 So. 3d 869, 870 .(Fla. 1st DCA 2011); see also W. 312 Feet, etc., v. City of Orlando, 80 Fla. 233, 86 So. 197, 198-99 (1920) ("Courts are bound to take notice of the limits of their authority, and if want of jurisdiction appears at any stage of the proceeding, original or appellate, the court should notice the defect and enter an appropriate order."). Not surprisingly, the only party before the court—the party asking us to exercise our jurisdiction to reverse the judgment of the circuit court—does not question our jurisdiction. Even so, examination of jurisdiction is "a matter of primary concern to which we must address ourselves sua sponte when any doubt exists." Mapoles v. Wilson, 122 So. 2d 249, 251 (Fla. 1st DCA 1960).
We are asked to exercise our appellate jurisdiction under article V, section 4(b)(1), which grants district courts jurisdiction to "hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts." Art. V, § 4(b)(1), Fla. Const. The appellant seeks review of the circuit court’s denial of her petition for judicial waiver of the requirement that she notify and obtain consent from her parents before terminating her pregnancy. The circuit court’s ostensible authority to rule on the petition springs from the Legislature’s constitutional authority to provide for a process for judicial waiver. Under article X, section 22, the Legislature may "require by general law for notification to a parent or guardian of a minor before the termination of the minor’s pregnancy."
Article X, section 22, was proposed by joint resolution of the Florida Legislature and approved by the voters in 2004. See Fla. HJR 1 (2004) at 631 (proposed art. X, § 22, Fla. Const.). The joint resolution to amend the constitution to provide for parental notification followed a 2003 Florida Supreme Court decision holding unconstitutional Florida’s then-applicable parental notification law. See N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So. 2d 612 (Fla. 2003) (declaring that the "Parental Notice of Abortion Act" found in section 390.01115, Florida Statutes, violated article I, section 23 of the Florida Constitution); Fla. H.R. Comm. on Parental Notification of Abortion on a Minor, HJR 1 (2004) Post-Meeting Staff Analysis 2 (Mar. 11, 2004) (https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=h0001a.ju.doc&DocumentType=Analysis&BillNumber= 0001&Session=2004).
Under article X, section 22, the voters granted the Legislature constitutional authority to enact laws requiring parental notification when a minor seeks to terminate her pregnancy. But if the Legislature enacts a parental notification law, article X, section 22 requires the Legislature to provide for exceptions and a process for judicial waiver of the required notification.
The requirement for a judicial waiver process in connection with a parental notification law stems from then-applicable decisions from the United States Supreme Court. At the time the voters approved article X, section 22, Supreme Court precedent held that a state enacting a parental consent or notification law had to provide for an "alternative procedure" to allow the minor to obtain authorization for the abortion. See Bellotti v. Baird, 443 U.S. 622, 643, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) ("We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.") (emphasis supplied) (footnote omitted); In Bellotti, the alternative procedure the Court was asked to consider was authorized under a Massachusetts statute authorizing a court proceeding if the parents refused consent. Id. Even so, the Supreme Court did not hold or even suggest that a state enacting a parental notification or consent law should delegate to the courts the function of providing for the required "alternative procedure." Id. Quite the contrary. The Court made clear that an administrative agency could perform the function and perhaps more appropriately:
As [the Massachusetts parental consent statute] provides for involvement of the state superior court in minors’ abortion decisions, we discuss the alternative procedure described in the text in terms of judicial proceedings. We do not suggest, however, that a State choosing to require parental consent could not delegate the alternative procedure to a juvenile court or an administrative agency or officer. Indeed, much can be said for employing procedures and a forum less formal than those associated with a court of general jurisdiction.
Id. at n.22.
Article X, section 22 does not mention any article V court, nor does it require the involvement of article V courts in the judicial waiver process. But see Art. V, § 1, Fla. Const. (allowing administrative officers to exercise quasi-judicial power in matters connected with the functions of their offices).
In 2005, the Legislature exercised its authority under article X, section 22 to enact a parental notification law and provided for judicial waiver of the required notifications. See § 390.01114, Fla., Stat. (2005); Ch. 2005-52, § 2, Laws of Fla. The judicial waiver provision is found in section 390.01114(6)(a), Florida Statutes. Even though it could have delegated the judicial waiver procedure to an administrative agency, the Legislature assigned the judicial waiver procedure to Florida’s circuit courts. Under section 390.01114(6)(a), circuit courts may waive the requirement that parents of a minor child seeking to terminate her pregnancy receive notice of and consent to the procedure. The circuit court must consider these factors:
1. 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.
2. Whether there may be any undue influence by another on the minor’s decision to have an abortion.
§ 390.01114(6)(c), Fla. Stat. (2023).
In 2020, the Legislature added to section 890.01114 a requirement, separate from the parental-notification obligation, to obtain parental consent before terminating a minor’s pregnancy. Ch. 2020-147, § 2, Laws of Fla. The judicial waiver provision described above remains the same for dispensing with the consent requirement. Because article X, section 22 does not address parental consent, it is essentially irrelevant to this requirement. Instead, the Legislature relied on its general lawmaking authority to add the consent requirement, rather than any specific constitutional provision.
Under the current version of the statute, the minor’s parents—whose rights to be notified of and consent to the termination of the pregnancy are at issue—have no voice and no representation. The lack of any adverse party results in a process that deprives the circuit court of many tools typically used to assess the credibility of witnesses presenting testimony. There are no witnesses to testify about the minor’s bias or reputation for truthfulness. No prior inconsistent statements are offered to impeach the minor’s credibility. And there is no adverse party to cross-examine the appellant.
And so, the circuit court often finds itself hearing evidence drawn from leading questions posed by appointed counsel and answers provided to those questions by the minor and her chosen witnesses. See In re Doe, 973 So. 2d 548, 552 (Fla. 2d DCA 2008) (observing that "[t]he minor responded affirmatively to her attorney’s conclusory questions regarding whether she had thoughtfully considered alternatives to having an abortion"). Even so, "Florida’s judicial waiver statute is not a rubber-stamp regime." In re Doe, 370 So. 3d 703, 707 (Fla. 5th DCA 2023) (Pratt, J., concurring). To better evaluate the minor’s credibility and assess the factors laid out by the statute, the circuit court may ask questions of the minor when her testimony is ambiguous. In re Doe, 973 So. 2d at 559 (Casanueva, J., concurring) ("In situations where ambiguous testimony is presented, the trial judge is not required to be a passive observer.").
The lack of an adverse party and the limited tools available for the circuit court to evaluate credibility make the judicial waiver process function less like the adversarial process fundamental to our Anglo-American system of justice and more like the process under the civil law where the trial judge acts as independent inquisitor. See, e.g., Crawford v. Washington, 541 U.S. 36, 43, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ("The common-law tradition is one of live testimony in court subject to adversarial testing, while the civil law condones examination in private by judicial officers."); McNeil v. Wisconsin, 501 U.S. 171, 181 n.2, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) ("What makes a system adversarial rather than inquisitorial is not the presence of counsel … but rather, the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.").
The appellate process that follows similarly deviates from the customary process in our adversarial system of justice. When the circuit court denies a judicial waiver petition and the minor appeals to the district court, the Legislature and the Florida Supreme Court require that we render a decision very swiftly. The consequences of not acting swiftly enough are extraordinary. Sections 390.01114(6)(b)2. and (g) provide that the district court "must rule within 7 days after receipt of appeal" and authorizes an expedited appeal "as the Supreme Court provides by rule." Under Florida Rule of Appellate Procedure 9.147(d), a district court reviewing a denial of a judicial waiver must "render its decision on the appeal no later than 7 days from the transmittal of the record."
Rule 9.147 was amended on October 12, 2023, with an effective date of January 1, 2024. See In re Amends. to Fla. Rules of App. Proc., 372 So. 3d 591, 594 (Fla. 2023). The amended rule provides that the, court’s decision must be rendered "no later than 7 days from the receipt of the notice of appeal. If no decision is rendered within that time period, the order is deemed reversed, [and] the petition is deemed granted." Fla. R. App. P. 9.147 (2024) (emphasis supplied).
But if a district court does not render its decision within seven days, the Supreme Court tells us that "the [circuit court’s] order shall be deemed reversed, the petition shall be deemed granted." Fla. R. App. P. 9.147(d). But cf. Art. V, § 4(a) ("Three judges shall consider each case and the concurrence of two shall be necessary to a decision.") (emphasis sup- plied). This extraordinary and automatic reversal of the final judgment of a circuit court—based solely on the inaction of the appellate court—appears to be unique in Florida law to the judicial waiver process.
Even so, the pace of judicial waiver appeals is not the only atypical feature in the appellate process. All proceedings under the judicial waiver statute—including appellate hearings or arguments—must "remain confidential and closed to the public." § 390.01114(6)(f), Fla. Stat. Consequently, even though we are authorized by the appellate rules to order briefing or hear oral argument in such appeals, because of the confidentiality provisions of section 390.01114(6)(f), any briefing or oral argument can necessarily come only from the minor child and her counsel. See Fla. R. App. P. 9.147.
The one-sided nature of the appeal in judicial waiver cases and closure of the courtroom is foreign to the typical appellate process where amicus curiae may provide briefing to the court or where the Attorney General may be heard on the constitutionality of a statute. See, e.g., Fla. R. App. P. 9.370 (authorizing amicus curiae to provide briefing to the court when granted leave to do so); Fla. R. App. P. 9.425 (requiring a party to provide notice to the Attorney General when the constitutionality of a statute or constitutional provision are at issue); see also § 16.01(4), Fla. Stat. (requiring the Attorney General to appear in the Supreme Court or a district court of appeal and attend to "all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested").
These deviations from the procedures and protections normally present in an adversarial proceeding raise questions about the exercise of judicial power in judicial waiver cases. Questions about whether the circuit court may exercise the judicial power under article V when it considers a petition for judicial waiver. Or whether the circuit court has been tasked with performing the functions of another branch of government when it grants or denies a waiver. Put differently, it is unclear whether the Legislature’s grant of authority to circuit court's to effect the process authorized under article X, section 22 added to the existing powers of the circuit courts under article V—permitting the circuit courts to exercise quasi-legislative power by waiving the otherwise applicable requirements of a duly enacted statute based on the court’s factual determinations.
We need not address the circuit court’s authority to grant or deny a judicial waiver because our authority to consider this appeal is lacking. Whatever power article X, section 22 gives to a circuit court when the Legislature enacts a judicial waiver law or whatever government function a circuit court is allowed to perform when it considers a petition for judicial waiver, article X, section 22 says nothing about appeals or the exercise of appellate judicial power. It mentions only a process for judicial waiver—a function that the Legislature has by general law assigned exclusively to the circuit courts to perform. The Legislature in turn authorized by general law district courts to hear appeals after a circuit court has considered a petition for judicial waiver, and only when a circuit court denies such a petition, In re Doe, 204 So. 3d 175, 176 (Fla. 1st DCA 2016) ("Notably, only a denied petition may be reviewed on appeal; a petition that is granted is not subject to appellate review.").
[4, 5] But when it authorized an appeal to the district courts, the Legislature did not and could not give district courts any new power or allow us to perform a function of any other branch of government. This is because the Legislature cannot by general law require a district court to ex- ercise anything besides the judicial power granted to it under article V. See State ex rel. Buckwalter v. City of Lakeland, 112 Fla. 200, 150 So. 508, 512 (1933) ("It may be said as a general rule that whatever power is conferred upon the courts by the Constitution cannot be enlarged or abridged by the Legislature."); cf. Cotten v. Cnty. Comm’rs of Leon Cnty., 6 Fla. 610, 613 (1856) ("While it is an essential element in the character of an independent judiciary firmly to maintain and resolutely to exercise its appropriate powers when properly invoked, it is equally its duty to be careful not rashly and inconsiderately to trench upon or invade the precincts of the other departments of the government."). Nor can the Legislature require a district court to perform the functions of another branch of government. Burnett, 122 So. at 576 (Fla. 1929) (explaining that the Legislature "may not require a person belonging to the judicial department to exercise the power which appertains to the legislative department").
[6, 7] We are left then with the authority to exercise only the appellate judicial power granted us under article V. We may not exercise that power here, because there is no justiciable controversy before our court. The supreme court has explained that "[t]he judicial power of the state extends to all controversies justiciable in their nature and to the parties to which or the property involved in which may be readied by judicial process." Id. at 575. A case suitable for the exercise of judicial power requires "a judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected or wrongs are prevented or redressed."’ First Nat’l Bank of Miami v. Bebinger, 99 Fla. 1290, 128 So. 862, 863 (1930) (quoting Ex parte Chesser, 93 Fla. 590, 112 So. 87, 90 (1927)). It is "a fundamental principle of appellate procedure that only actual controversies are reviewed by direct appeal." Sarasota-Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which Drainage Taxes for the Year 1952 Have Not Been Paid, 80 So. 2d 335, 336 (Fla. 1955).
[8, 9] And necessary to a justiciable controversy is "the existence of present or possible adverse parties, whose contentions are submitted to the court for adjudication." Bebinger, 128 So. at 863. When there are no adverse parties, a justiciable controversy is lacking, and a court may not exercise its judicial power. See Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 720-21 (Fla. 1994) (explaining that the only exception to the general requirement that cases must involve a real controversy is where the Florida Constitution otherwise authorizes advisory opinions); cf. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) (explaining that the "case or controversy" provision of Article III of the United States Constitution "limit[s] the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process"). This limitation on our exercise of judicial power is rooted in judicial fidelity to the doctrine of separation of powers. See Casiano v. State, 310 So. 3d 910, 913 (Fla. 2021). The supreme court has explained that a justiciable controversy must be present before a court may exercise the judicial power, and emphasized that such controversy must be adversarial:
We have said that there can be no appeal without an appellant. Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 [(1931)]. We amplify that statement by saying that there can be no appeal without an appellant and an appellee. In Ervin v. Taylor (Fla. 1953), 66 So. 2d 816, 817, we said, ‘The complaint was a mere petition to the court to pass upon the validity of an act of the legislature. There were no adversaries, and being
none, there was no actual controversy. In that situation there was no justification for adjudicating the constitutionality of the enactment. Ervin v. City of North Miami Beach Fla., 66 So. 2d 285 [(Fla. 1958)].’ In the case of Ervin v. City of North Miami Beach (Fla. 1958), 66 So. 2d 285, 236, we emphasized, that "Judicial adherence to the doctrine of separation of powers preserves the courts for the decision of issues between litigants capable of effective determination."
Sarasota-Fruitville Drainage Dist., 80 So. 2d at 336-37.
[10] This appeal conies to us with only the minor’s interests presented to the court. And without representation of the interests of the parents—the parties whose rights are directly implicated under the parental notification and consent law. Indeed, the appeal comes to us with no appellee at all. Under these circumstances, there is no justiciable controversy for us to adjudicate. See-May v. Holley, 59 So. 2d 636, 639 (Fla. 1952) (explaining the necessity for "some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter … [and] that the antagonistic and adverse interests are all before the court"). And our jurisdiction is therefore lacking. Scott v. Francati, 214 So. 3d 742,, 747 (Fla. 1st DCA 2017) (explaining that for a court to exercise its jurisdiction, there "must exist some justiciable controversy between adverse parties that needs to be resolved" (quoting Atwater v. City of Weston, 64 So. 3d 701, 704-05 (Fla. 1st DCA 2011))). Because we may not exercise our judicial power beyond what has been granted us under article V, we dismiss this appeal. See Art. II, § 3, Fla. Const.
Dismissed.
Winokur, J., concurs; B.L. Thomas, J., concurs with opinion.
B.L. Thomas, J., concurring.
I concur in the correct decision of the majority holding that this Court lacks jurisdiction to consider this appeal. There is no justiciable controversy because there is no adverse party; the missing adverse party here is at least one of the minor’s parents or her guardian.
Without notice and without an opportunity to be heard, the minor’s parents are deprived of the most fundamental liberty interest recognized in law: the fundamental right to care for and raise their daughter, to advise and counsel her regarding this decision. "The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070, (1925) (declaring statute requiring children to attend public schools unconstitutional). Instead, section 390.01114, Florida Statutes, applies a most pernicious presumption: it substitutes a disinterested judge for the daughter’s parents, forcing the judge to cross-examine the minor, as if the judge can somehow substitute for the parents. And in doing so, the statute unquestionably violates the parents’ rights under the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, by excluding them from the courtroom and from notice and any opportunity to be heard regarding their minor daughter’s ultimate decision to terminate her pregnancy.
It is difficult to imagine a more grievous violation of, constitutional law. This the state cannot do.
In its essence, the statute terminates parents’ rights to care for and counsel their own children regarding a serious medical procedure, without providing par- ents with any due process under the law, much less a procedure that protects parents’ fundamental liberty interest in caring for their children. The U.S. Supreme Court declared it "plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest" far more precious than any property right. Lassiter v. Dep’t of Soc. Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (quoting Stanley v. Ill., 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). When the State initiates a parental rights termination proceeding, it seeks not merely to infringe upon that fundamental liberty interest, but to end it. "If the State prevails, it will have worked a unique kind of deprivation. A parent’s interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." Id. at 27, 101 S.Ct. 2153 (footnote omitted) (citations omitted); see also Santosky v. Kramer, 455 U.S. 745, 768-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that termination of parental rights proceedings must apply a "clear and convincing evidence" standard of proof); State ex rel. Sparks v. Reeves, 97 So. 2d 18, 20 (Fla. 1957) ("[W]e nevertheless cannot lose sight of the basic proposition that, a parent has a natural Godgiven legal light to enjoy the custody, fellowship, and companionship of his offspring.").
Here, the parents were excluded from the courtroom and deprived of any notice that their daughter, with the assistance of her boyfriend and his mother, sought judicial approval to allow the minor to terminate her pregnancy without notice to her parents. Yet under state law, even parents accused of abusing their children and thus facing termination of their rights, persons accused of repeat violence, sexual violence, dating violence, and stalking, all have the right to notice and an opportunity to be heard before an adverse adjudication of their rights. See §§ 39.809, 784.046(6)(c), 784.0485(4), Fla. Stat. (2023). But under the current judicial waiver provisions of section 390.01114, law-abiding parents have no statutory right to even be notified that their minor daughter seeks to terminate her pregnancy, much less to be heard in the courtroom. Thus, this judicial waiver statute violates the parents’ fundamental rights to fulfill their duties and to care for their children under the U.S. Constitution and long-standing U.S. Supreme Court precedent.
In this case, the violation of the rights of the minor’s parents is even more egregious, as it is likely in many cases. The boyfriend’s mother was notified of the pregnancy, but not the child’s parents. Thus, unknown to her own parents, their daughter has informed someone else’s parent, and sought "guidance" from her.
Thus, I concur in the majority’s Well-reasoned opinion dismissing this case for lack of jurisdiction. But in my view, had this Court possessed jurisdiction, it would be obligated to declare section 390.01114, as currently applied to exclude parents from any notice or opportunity to be heard, invalid under the Fourteenth Amendment to the U.S. Constitution and the fundamental principles that protect the parent-child bond and undergird parents’ substantive and procedural due process rights embodied in that Amendment to our supreme organic law.
O rder D enying M otion for R ehearing E n B anc and C ertifying Q uestions of G reat P ublic I mportance
The Court has denied the motion for rehearing en banc docketed January 12, 2024.
On our own motion, we certify the following questions of great public importance to the Florida Supreme Court:
May a district court of appeal exercise APPELLATE jurisdiction over a trial court’s ruling denying a judicial waiver under section 390.01114(6)(B)2., Florida statutes, in the absence of an adverse PARTY IN THE APPEAL?
If a district court dismisses an appeal FROM A TRIAL COURT’S ORDER DENYING A JUDICIAL WAIVER WITHIN THE SEVEN DAYS REQUIRED UNDER SECTION 390.01114(6)(B)2., Florida statutes, but does not render a DECISION WITHIN SEVEN DAYS AS PROVIDED UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.147(D), MUST THE DISTRICT COURT OF APPEAL REVERSE THE TRIAL COURT’S RULING, EVEN THOUGH TWO JUDGES HAVE NOT CONCURRED IN THE DECISION AS REQUIRED BY ARTICLE V, SECTION 4(A) OF THE FLORIDA CONSTITUTION?
Question Certified.
B.L. Thomas, Rowe, and Winokur, JJ., concur.