In re Doe

¶1Concurring.

¶2I fully endorse the thoughtful majority opinion. I write separately to more fully explain my reasons for concluding that the circuit court abused its discretion in this matter.

¶3Three decades ago, the Florida Supreme Court issued Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), in which it expounded on the nature of judicial discretion and the standard of review for reviewing discretionary rulings. Courts and litigants often invoke Canakarisfor the proposition that an abuse of judicial discretion may be found only when no reasonable person would agree with the lower court’s ruling. Id. at 1203. But they frequently overlook the critically important central components of that “reasonableness” test:

The trial court’s discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts’ discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner. Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

¶4Id.

¶5Of course, in addition to the notions that there must be some logic and justification *890for a discretionary ruling, and that similar cases should lead to similar results, judicial discretion is constrained by another important parameter that is applicable to all judicial rulings: it must comport with the law and the evidence. Under the circumstances presented in this case, the circuit court’s conclusion that Doe was not sufficiently mature to decide for herself whether to terminate her pregnancy failed the reasonableness test.

¶6As the majority opinion points out, the circumstances of this case are substantially similar to those in In re Doe, 36 So.3d 164 (Fla. 2d DCA 2010), in which we held that the record did not support the circuit court’s determination that the petitioner was not sufficiently mature to decide to terminate her pregnancy. There are two seeming differences between the cases.2 First, in the 2010 ease the petitioner had consulted a trusted adult relative about her decision; there is no evidence of such in this case. Some courts have considered it a hallmark of maturity that a petitioner has sought such counsel. But, obviously, her failure to do so is not necessarily evidence of immaturity, and it could have no practical significance at all in the absence of proof that she had a trusted adult confidante available to her. Because there was no such proof here, this factor was irrelevant to the question of Doe’s maturity.

¶7I acknowledge that the other difference between this case and the prior one is, at least superficially, more significant. In the earlier case, the circuit court’s order made no mention of the petitioner’s demeanor as a factor affecting the court’s assessment of the petitioner’s maturity. In this case, however, the court weighed Doe’s purported demeanor heavily against her:

The court finds that the Petitioner does not fully appreciate the depth of the magnitude of this life altering choice. In fact, the court finds that the Petitioner was rather cavalier in her demeanor and responses concerning her overall depth of thoughtfulness to this extremely important decision.

¶8Yet, the evidence was uncontested that this young woman had investigated the medical risks associated with the termination procedure and that she had weighed them against the relative gravity of her alternatives. Doe had considered what she would do if she developed physical complications, i.e., she would return to the clinic or go to an emergency room. If she experienced emotional difficulties, she said, she would seek counseling or find someone to talk to. (The circuit court’s findings mentioned this testimony but omitted Doe’s reference to counseling.)3

¶9Doe’s testimony also reflected her awareness that abortion is a controversial *891procedure about which many people have strong feelings; she reported that her mother was “completely against” it, to the point that Doe believed her mother would banish her from their home if she learned of her intention to terminate the pregnancy. Finally, she recognized that childrear-ing, or merely a full-term pregnancy, would substantially interfere with or altogether thwart her educational and career plans as well as her ability to meet her significant responsibilities at home — particularly those involving her younger sibling, whom she was helping to rear. In other words, in Doe’s view, a decision not to terminate the pregnancy would be life altering.

¶10In light of the uncontradicted evidence, it is impossible to dispute that assessment. Doe’s concerns were not the insubstantial worries of a frivolous schoolgirl. They related directly to her ability to carry out her important existing responsibilities and to accomplish specific educational and professional objectives that would determine the quality of the rest of her life. As the United States Supreme Court has observed:

[T]he potentially severe detriment facing a pregnant woman, see Roe v. Wade, [410 U.S. 113, 153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) ], is not mitigated by her minority. Indeed, considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor. In addition, the fact of having a child brings with it adult legal responsibility, for parenthood, like attainment of the age of majority, is one of the traditional criteria for the termination of the legal disabilities of minority. In sum, there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.

¶11Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979).4

¶12*892It is difficult, then, to fathom what the circuit court meant by its assertion that Doe did not sufficiently appreciate the “depth of the magnitude of this life altering choice,” or its criticism of her “overall depth of thoughtfulness to this extremely important decision.” To the contrary, the unmistakable import of the evidence was that this young woman knew precisely what is at stake for her. I can only surmise, without knowing, that the court’s remarks referred not to the accuracy of Doe’s assessment of the choices available to her, but to her failure to express ethical or moral ambivalence about her decision to terminate the pregnancy. Notably, she was not questioned on the topic. But if this is what gave the court pause about Doe’s “depth of thoughtfulness,” I submit that the court demanded more of her than the law permits.

¶13In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the United States Supreme Court addressed the constitutionality of the Texas abortion statute. The Court prefaced its analysis with a lengthy examination of the widely disparate views, both historical and contemporary, about the beginning of life. The Court concluded that “[i]n view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.” Id. at 162. The Court ultimately concluded that the state’s interest in regulating abortion is confined to protecting the mother’s health after the first trimester of pregnancy and protecting “the potentiality of human life” after the second trimester. Id. at 162-63. During the first trimester, the Court held, the decision whether to terminate a pregnancy is strictly a matter between the pregnant woman and her physician, free of interference or regulation by the state. Id. at 163. In other words, a pregnant woman is constitutionally entitled to elect between proceeding with her pregnancy or terminating it consistent with her own ethical, moral, or religious convictions, or lack thereof — and unburdened by the state’s assertion that she should feel differently about it.

¶14Jane Doe has that very right, and if she is sufficiently mature, she is entitled to invoke it without consulting a parent. The parental notification requirement is justified only by the state’s interest in protecting immature minors who lack the ability to intelligently and independently weigh their choices. The Supreme Court has observed that it is rational for the state to assume that the family will “strive to give a lonely or even terrified minor” guidance to assist her with her decision. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). It would be irrational to hold that a woman who is only a few weeks shy of her eighteenth birthday, who *893is fully aware of the position her parent would take, and who has made a different choice for herself based on sound, realistic reasoning, is not mature enough to do so because she is not sufficiently overwrought or ambivalent about her decision. The circuit court’s conclusion to that effect failed the reasonableness test, and therefore it was an abuse of discretion.

¶20dissenting.

¶21I respectfully dissent. Having observed and questioned the petitioner, the trial judge determined that she lacked the maturity to decide to terminate her pregnancy without notifying her parent, and he issued a well-reasoned, detailed order supporting his conclusion. Because competent, substantial evidence supports the trial court’s findings of fact and conclusions of law, I would affirm. See In re Doe, 67 So.3d 268, 268 (Fla. 2d DCA 2011). Sufficient maturity must be shown by clear and convincing evidence, and this court reviews the trial court’s order for an abuse of discretion. Clear and convincing evidence is evidence of “‘such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’ ” In re Doe, 973 So.2d 548, 556 (Fla. 2d DCA 2008) (Casanueva, J., concurring in denial of rehearing en banc) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). Both the clear and convincing and abuse of discretion standards are statutory. § 390.01114(4)(b)(2), (4)(c). These heightened standards of review denote the legislature’s strong position that judicial waiver is clearly to be an exception to the notice requirement.

¶22The trial court issued a detailed order in this case. While it is true that the trial court did not undertake a point-by-point review of the statutory factors, as does the majority, it is clear that the court was familiar with the statute and the factors and considerations announced in case law when determining whether the petitioner met her burden by clear and convincing evidence. See In re Doe, 67 So.3d at 268. The court specifically considered the petitioner’s demeanor, a factor previously focused on by this court as the single most important consideration in a minor’s ability to decide whether to terminate her pregnancy. Compare In re Doe, 67 So.3d at 268 (“Significantly, the trial court made specific findings and expressed particular concern regarding the minor’s demeanor, and the court considered that factor important in this case.”) with In re Doe, 36 So.3d 164, 165 (Fla. 2d DCA 2010) (reversing the trial court’s dismissal and specifically noting “the circuit court’s order made no mention of the minor’s demeanor”), and In re Doe, 932 So.2d 278, 285 (Fla. 2d DCA 2005) (reversing the trial court’s dismissal and noting that petitioner’s demeanor might have been the “one possible exception” to the maturity evidence). Judge Altenbernd has previously observed, “[mjaturity is often evidenced by demean- or, composure, tone of voice, and body language.” In re Doe, 973 So.2d at 574 (Altenbernd, J., dissenting on denial of rehearing en banc). In addition, “[i]f the issue is ‘maturity to decide,’ then it would seem to rest heavily upon factors of demeanor and matters that cannot be gleaned from an appellate record in the absence of.findings by the trial judge.” Id. at 575.

¶23In its order, the trial court referred to petitioner’s demeanor and responses as “cavalier.” Although the court indicated petitioner was neat, well dressed, and courteous, it also noted that she appeared “somewhat insecure.” The court also found that petitioner’s demeanor and responses evidenced a lack of thoughtfulness and a failure to “fully appreciate the depth of the magnitude” of her choice.

¶24In addition to having the invaluable benefit of personally observing and speaking *894with the petitioner, the court considered the petitioner’s testimony in light of the case law discussing and attempting to define “sufficiently mature” for purposes of section 390.01114(4)(c). Of those identified by the court, the most striking to me is the immaturity exhibited by petitioner on the day of conception. Petitioner readily admitted to succumbing to peer pressure to drink alcohol. She became intoxicated and had sexual intercourse — an act she testified she would not have engaged in had she been sober. In fact, petitioner only “vaguely recalls” the sex that resulted in her pregnancy; she did not indicate that she and the father were in a relationship and she does not anticipate having any future relationship with the father. Cf. In re Doe, 932 So.2d at 284. In these cases, a “ ‘minor’s conduct is a measure of good judgment’ ” and “ ‘judgment is of very great importance in determining maturity.’ ” In re Doe, 973 So.2d at 551 (quoting H— B— v. Wilkinson, 639 F.Supp. 952, 954 (D.Utah 1986)). Here, petitioner’s actions illustrate poor judgment and are the antithesis of the necessary maturity to decide to terminate her pregnancy.

¶25In addition, petitioner’s understanding of her options and the termination methods available to her — including the potential medical complications that may result from a pregnancy termination — were superficial and evidenced a lack of understanding. “Significantly, the minor failed to demonstrate any knowledge regarding any specific immediate or long-term physical, emotional, or psychological risks of having an abortion.” In re Doe, 973 So.2d at 552. In fact, the majority of petitioner’s answers were inarticulate in terms of reasoning. See id.; cf. In re Doe, 36 So.3d at 165. Her knowledge of potential risks and consequences was both limited and inaccurate. For instance, she described termination by pill as resulting in a “normal period” and cited the potential for “getting sick” and urinary tract infections as the risks associated with surgical termination of pregnancy. “If maturity and good judgment are measured by one’s attempt to become fully informed of all of the options available and the possible consequences of those options, the instant record does not demonstrate that this petitioner exhibited such maturity.” In re Doe, 932 So.2d at 289 (Davis, J., dissenting). In fact, petitioner’s testimony evidences a lack of awareness, appreciation, and consideration of the risks associated with abortion. See In re Doe, 973 So.2d at 552; In re Doe, 932 So.2d at 281.

¶26And although she had one telephone conversation with a Planned Parenthood nurse, she has not sought the emotional support or counsel of any adult. Cf. In re Doe, 36 So.3d at 165. When asked what options she had considered, she stated abortion and raising the child. She continued: “And it would just be very, very, very hard for me with going to school, and not having a job, and still living with my mom, and having other responsibilities, like taking care of my [younger sibling], and so I just figured abortion would probably be the — the best way to go.” This evidence fails to advise the trial court of the “depth or duration of [petitioner’s] deliberative process.” In re Doe, 973 So.2d at 557 (Casanueva, J., concurring in denial of rehearing en banc). And while the majority takes issue with the court’s lack of followup questions in this regard, it is not the responsibility of the court to solicit testimony from the petitioner; the petitioner bears the burden of proof. See In re Doe, 973 So.2d at 550.

¶27I note, too, that petitioner’s testimony as to whether she has discussed her pregnancy with someone other than the father is conflicting. When directly asked whether she had discussed the pregnancy with anyone other than the father she answered *895“no.” However, when asked how she would pay for the termination, she stated a friend of hers “was going to help her out.”

¶28Other facts considered by the court included that the petitioner has never worked outside of her home, has never earned any money other than a small weekly allowance, and has had very little exposure to handling personal finances. These facts are evidence of lack of the required maturity. Cf. In re Doe, 973 So.2d at 550; In re Doe, 967 So.2d 1017, 1020 (Fla. 4th DCA 2007). In addition, while it is true that petitioner expressed educational and career aspirations and makes good grades in school, the court took notice at the hearing that petitioner’s high school is a nontraditional, on-line school, and that petitioner does not take advanced placement classes.

¶29Peculiarly, the majority asserts that the facts of our case are “remarkably similar” to In re Doe, 36 So.3d 164. I disagree and note that in direct contrast to the 2010 Doe decision, the trial court here addressed petitioner’s demeanor and petitioner here has not consulted any adult about her situation. In reviewing our past decisions, these factors have been deemed arguably the most significant in reaching the maturity determination. In addition, at the time of the hearing our petitioner had not visited a medical clinic and she evidenced a lack of understanding about the termination procedures. Therefore, the majority’s reliance on the 2010 Doe decision as authoritative in this case is unpersuasive.

¶30It appears to me that the majority is substituting its conclusions regarding the minor’s maturity for the trial court’s, without the benefit of observing the tenor of the proceedings or petitioner’s body language, tone of voice, and demeanor. These are assessments necessary to the determination of maturity which are impossible to glean from a cold record. By statute, this court may only overturn the trial court’s ruling when the trial court has abused its discretion. Here, by necessity, the majority must resort to a dictionary definition of cavalier, whereas the trial judge’s findings of fact, in his well-reasoned order, reflect that he knew it because he saw it. Finally, I believe the majority departs from this court’s opinion in In re Doe, 67 So.3d 268, by effectively reviewing the testimony de novo rather than determining whether the testimony supports the trial court’s findings.

¶31In my opinion, there is competent, substantial evidence to support the trial court’s ruling, and in dismissing the petition the court acted well within its discretion.