Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D22-0103 _____________________________ IN RE: JANE DOE 22-A, Appellant. _____________________________ On appeal from the Circuit Court for Leon County. Joshua Hawkes, Judge. January 19, 2022 PER CURIAM. Appellant, a minor, appeals the trial court’s dismissal of her petition for judicial waiver of parental consent to terminate her pregnancy. The trial court found, based on the presentation below, that Appellant had not proved by clear and convincing evidence that she was sufficiently mature to decide whether to terminate her pregnancy. We affirm the dismissal. * AFFIRMED. WINOKUR and LONG, JJ., concur; MAKAR, J., dissents with opinion. * The dissent raises a potential alternative means of waiver pursuant to sections 390.01114(4)(b)(4) and (5)(b)(1), Florida Statutes, but Appellant petitioned for judicial waiver under section 390.01114(6). Our responsibility, like the trial court’s below, is to adjudicate the legal issue presented. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ MAKAR, J., dissenting. This appeal arises from an order denying a pregnant minor’s request to bypass parental consent to the termination of her pregnancy under the process set forth in section 390.01114, Florida Statutes. 1 I disagree that the trial court’s findings and denial of relief to the minor are legally supportable. Solely as a procedural matter, the trial court’s dismissal of the minor’s petition was proper, not because the trial court’s order on the merits was correct, but because the minor was not required to seek a judicial waiver in the first place due to her having a dependent minor child for whom she has cared for more than a year without her parent’s involvement or financial support. Id. §§ 390.01114(4)(b)4., (5)(b)1. Subsections (4)(b)4. and (5)(b)1. are 2 self-executing, meaning that a minor with a dependent child need not invoke the judicial bypass procedure at all. As the Legislature 1 The Legislature added parental consent to the statute in 2020. Ch. 2020-147, Laws of Fla. The constitutionality of the addition in light of In re T.W., 551 So. 2d 1186, 1196 (Fla. 1989) (holding parental consent statute unconstitutional under state constitutional right to privacy), has not been addressed in reported caselaw; and neither trial counsel for the minor nor the trial judge mentioned the issue in this proceeding. 2 Under subsection (4)(b)4., notice is not required if “[n]otice is waived by the patient because the patient has a minor child dependent on her.” Subsection (5)(b)1. in turn provides that the consent of a parent or guardian is not required if: “[n]otification is not required as provided in subparagraph (4)(b)1., subparagraph (4)(b)3., subparagraph (4)(b)4., or subparagraph (4)(b)5.” (Emphasis added). 2 has clearly specified, she may choose to independently seek to terminate her pregnancy without parental notification or consent. Under the factual circumstances presented to the trial court, the minor’s petition should have been dismissed because the judicial waiver she sought was unnecessary. 3 An appellate court, of course, may affirm a trial court’s erroneous ruling on an alternative basis that exists in the record. 4 Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“Stated another way, if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). My colleagues do not affirm on this basis, however, and “adjudicate the legal issue presented,” thereby upholding the trial court’s erroneous order on the merits. As I’ve previously written, a trial court is entitled to extraordinary deference under the statutory appellate standard in these judicial waiver proceedings. In re Doe 13-A, 136 So. 3d 723, 748 (Fla. 1st DCA 2014) (Makar, J., dissenting) (“[T]he question is only whether a reasonable judge could have reached the conclusion of this trial judge based on the non-adversarial appellate record presented under the über-deferential standard of appellate review.”). Though an appellate court is not to reweigh the evidence, an abuse of discretion may exist where the established facts do not 3 The record does not indicate whether the trial judge was aware of the exemption for minors with dependent children, but presumably he was not because dismissal on that basis would have occurred, alleviating the need for a judicial waiver entirely. Ditto as to the minor’s trial counsel. 4 The record in these types of appeals is exceedingly sparse. Absent this Court ordering appellate briefing or argument, the appellate record typically contains only the form petition filled out by the minor and a transcript of the confidential ex parte hearing in the trial court, which is the case here. Because no legal memoranda or briefs have been filed, our panel is left to ascertain for itself and then adjudicate the issues the record presents on its own volition. 3 support the denial of a petition on the merits. § 390.01114(6)(b)2., Fla. Stat. This is such a case. As typically occurs in these cases, the minor did not have an attorney at the time she filled out by hand the standard form petition made available at the court clerk’s office. In that form, she stated her desire to terminate her pregnancy without her parents’ consent, presumably because she had been disowned and had no contact with them for two years such that parental consent would be meaningless in light of her full independence from them. She indicated that she was sufficiently mature to make the medical decision on her own and that consent was not in her best interests because she already has a child. The minor presumably did not check the box seeking to waive notification because her parents had abandoned her two years prior, making their notification ineffectual. 5 She checked the box asking for legal counsel. A ten-minute Zoom hearing was held during which the minor now had appointed counsel, who appeared virtually and began by saying that the minor “already has a child who she is responsible – solely responsible for.” At that point, the statutory basis for dismissal of the petition was established, eliminating the need to proceed further in the hearing. See §§ 390.01114(4)(b)4., (5)(b)1., Fla. Stat. 6 5 Because the minor’s parents had cut her off entirely two years prior, the minor arguably was a victim of “child abuse,” whose definition includes “abandonment,” such that an order allowing the minor to exercise her judgment in her best interests would be honored without parental involvement or consent. § 390.01114(6)(d), Fla. Stat. (definition of “child abuse”); see § 39.01(1), Fla. Stat. (2021) (“‘Abandoned’ or ‘abandonment’ means a situation in which the parent or legal custodian of a child . . . while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.”). 6 The same would be true if the minor was or had been married or had the disability of nonage removed. 4 In response to her lawyer’s questioning, the minor testified that she was seventeen years and eleven months old, had a one- year-old daughter, was solely responsible for her child’s care, had an eleventh-grade education, and worked a full-time job. She is completely independent of her parents who abandoned her two years ago when she was pregnant with her dependent child. She had no interaction with her parents during that time because she “was considered grown after having my first child.” She was kicked out of the house for having the first child and has since spent her days “[w]orking and taking care of my child.” She testified that she was not financially or emotionally able to handle the responsibility of another child given her care for and responsibility of her daughter. At that point, the trial judge asked two questions: whether the minor had sought child support for her daughter (she answered “[i]t’s a long process” that she had not started) and whether her pregnancy is due to “the same or a different father.” (“Different.”) Next, her legal counsel made a closing statement, saying that the minor—who “a month from now would not need a judicial waiver”—is “functionally an adult” because she “is living on her own, working 40 hours a week and parenting a child already.” He urged that she should be trusted to make this decision because “she is operating as an adult in this world and we should not require her to seek out parents who have functionally abandoned her in order to continue to operate as an adult in this world.” Two days later, the trial court issued a two-page order dismissing the petition, concluding that the minor had not established sufficient maturity to make her own medical decisions. Accepting the factual record and deferring to the trial judge’s ability to view the minor and hear her testimony in the Zoom hearing, this conclusion was an abuse of discretion. The record entirely supports the minor’s petition: she is one month shy of eighteen and is functionally an adult who made the decision a year earlier to give birth to her daughter and take on the full financial and emotional burden that such a monumental undertaking entails, despite her family throwing her out of her home and abandoning her entirely for the past two years. Her subsequent life—her work experience, living away from home independently for two years, and being responsible for her daughter—speaks volumes. She is, as her counsel argued, the type of person “to 5 trust—having borne and independently raised a one-year-old—to make this decision” for herself. Indeed, the Legislature has already made the judgment that minors with dependent children are exempted from the statute, presumably on the basis that these women can make their own judgments necessary to control their lives and destinies. See §§ 390.01114(4)(b)4., (5)(b)1., Fla. Stat.; see also In re Doe 13-A, 136 So. 3d at 732 (Wetherell, J., concurring) (noting that “as a practical matter, the denial of a judicial waiver” in that case “would disrupt, if not destroy, Appellant’s plans for her future” and the ability to make “a better life for herself than she likely would have had otherwise”). It makes little sense to force a young mother with a dependent child to bear another child when her parents have abandoned her and play no part in her ongoing life; perhaps the parents will consent to an abortion (because they didn’t want the first grandchild either) but the Legislature has specifically said that the wisdom (or whimseys) of parental consent are off the table when the minor has a dependent child; the facts of this case demonstrate why. The trial court’s order said it considered the statutory factors, 7 but even so a trial court’s analysis can nonetheless be “flawed” and amount to an abuse of discretion. In re Doe 13-A, 136 So. 3d at 725 (Roberts, J., concurring) (concluding that trial court abused its discretion, despite its “thorough analysis” of the statutory factors). Findings without record support likewise amount to an abuse of discretion. Id. at 729 (Wetherell, J., concurring) (“I recognize that the trial court’s order also referred to Appellant as ‘extremely naive’ about her situation, but there is absolutely no record support for this finding.”). That’s the case here as well. 7 Disagreement exists about whether a trial judge should be entirely passive, asking no questions about the statutory factors, or should be proactive and make inquiry about them. Because the statute spells them out as “[f]actors the court shall consider” in assessing a minor’s maturity, the better practice would seem to be the latter. § 390.01114(6)(c), Fla. Stat. (emphasis added). 6 What seemed to bother the trial court was the limited nature of the minor’s testimony and the yes/no nature of some of her answers, but the trial court itself only asked two questions, one peripheral (was this the same father?) and one upon which it made the insupportable finding that the “minor’s ability to accept responsibility does not lend support to granting the petition.” The trial court deemed it important that the minor “admitted to not even starting the child support process for her other child,” yet it overlooked that the minor showed financial responsibility (she had a full-time job) and nothing in the record showed that the father was able to pay child support. The trial judge seemed to suggest that the minor needed to seek out “alternative financial support from government programs” but did not explain why. The finding that the minor lacked emotional development or stability is speculative and ignores that the minor has functioned at a higher level than many adults, particularly in holding a full- time job and raising a child without governmental assistance. In re Doe, 153 So. 3d 925, 926 (Fla. 2d DCA 2014) (“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.”); see also In re Doe, 924 So. 2d 935, 939 (Fla. 1st DCA 2006) (“In determining whether a minor is ‘sufficiently mature,’ the court need only find that the minor has the necessary emotional development, intellect and understanding to make an informed decision regarding terminating her pregnancy.”). Notably, the trial judge found that “minor is 17” but never mentions that her eighteenth birthday was a month away, a factor appellate courts cite in reversing the dismissal of bypass petitions; it is not a dispositive factor, but a persuasive one. See, e.g., In re Doe 13-A, 136 So. 3d at 728 (Wetherell, J., concurring) (noting that “the minor in this case is a 17 ½-year-old high school senior”); In re Doe, 967 So. 2d 1017, 1020 (Fla. 4th DCA 2007) (“Doe is 17, less than a year shy of being outside the statutory requirement for parental notification.”). Plus, and perhaps most importantly, the minor had already experienced the risks of childbearing and its impact on her life, thereby distinguishing her from minors who have not had to confront such matters in their personal lives. Finally, the trial judge failed entirely to address whether requiring parental consent was in the minor’s best interest, which 7 is itself a sufficient basis to reverse its order given that the minor’s form petition specifically sought a waiver on that basis in light of her parents’ abandonment of her. See In re Doe, 943 So. 2d 806, 806 (Fla. 4th DCA 2006) (reversing for failure to “issue written and specific factual findings and legal conclusions” in support of denial of petition). Plus, on this record, what possible legal justification can there be to force the minor to bear a child under the circumstances as being in her best interests? The trial court found it important that the minor “appears to resent that her parents ‘considered her grown after having [her] first child,’” a finding that demonstrates precisely why the consent of her parents would be unavailing. It is one thing to require notification or consent where loving and wise parents are involved in a minor’s life; it is quite another to require consent of parents who have disowned and forsaken their child entirely. As two judges of this Court have expressed, a primary purpose of the statute—rightly or wrongly— is to provide a mechanism to prevent parental involvement (here, parental control due to the need for consent). In re Doe 13-A, 136 So. 3d at 725 (Roberts, J., concurring) (“However, the State of Florida through its Constitution and Statutes has created a mechanism by which minors can deceive their parents in order to receive an abortion.”); id. at 729 (Wetherell, J., concurring) (“Additionally, as discussed by Judge Roberts, this rationale cannot be squared with the fact that the underlying purpose of the Act is to allow the minor to keep her decision to terminate her pregnancy from her parents.”). Prior to the statute’s 2020 amendment, a minor could terminate her pregnancy or decide otherwise after notifying her parents, but the requirement of parental consent shifts the balance of power in the decision- making to the parents, making it all the more important for trial courts to adjudicate whether the best interests of pregnant minors are helped or hindered by requiring the consent of parents who have abandoned their minor children. In conclusion, the trial court erred in dismissing the minor’s petition on the basis that the minor had not established that she is sufficiently mature to make her own medical decision (she was) and erred in failing to determine whether parental consent was in her best interests (it would not be). Dismissal of the minor’s petition would be proper, however, on the alternative ground that no basis exists to seek or require a judicial waiver of parental 8 consent under the statutory exception for minors with dependent children, such as the petitioner. _____________________________ Ron Newlin, Office of Regional Conflict Counsel, Tallahassee, for Appellant. 9