In re Petition of Anonymous 5 ( 2013 )

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640 286 NEBRASKA REPORTS
appropriation application. But standing is determined as it
exists when the litigation is commenced.49 So to hold that
existing appropriators do not have standing to object to an
appropriation application effectively ensures that no one has
standing to object because no appropriator junior to the appli-
cation will normally exist.
Because the Department’s actions affect so many lives
and livelihoods, I believe this result is a mistake. The major-
ity’s holding will allow the Department to act with impunity
because its grant of new appropriations will be immune
from adversarial challenge and judicial review. The major-
ity’s opinion puts the appellants in a legal straitjacket. And
this result is not required by, nor consistent with, our previ-
ous decisions on standing in water cases or the Department’s
own regulations.
In sum, the information submitted with NPPD’s own appli-
cation is sufficient to show at the pleading stage that the
alleged injury is imminent, not remote or speculative. But to
affirm the director’s order, the majority opinion has ignored
NPPD’s flowchart; ignored the Department’s own actions and
regulations; distorted our standing standards in a manner that
will preclude standing in many future cases; and ignored our
case law upholding standing for landowners in similar cases.
Its conclusion that the appellants’ alleged injury is too specu-
lative rests almost entirely upon a single misconstrued state-
ment made in dicta.
49
See id.
In re P etition of A nonymous 5, a minor.
___ N.W.2d ___
Filed October 4, 2013. No. S-13-510009.
1. Abortion: Minors: Physicians and Surgeons. Generally, an abortion cannot be
performed upon an unemancipated pregnant woman under 18 years of age unless
a physician obtains the notarized written consent of both the pregnant woman and
one of her parents or a legal guardian.
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Cite as 286 Neb. 6402. Statutes: Appeal and Error. The meaning and interpretation of a statute are
questions of law. An appellate court independently reviews questions of law
decided by a lower court.
3. Abortion: Minors: Judgments: Appeal and Error. Under Neb. Rev. Stat.
§ 71-6904(6) (Cum. Supp. 2012), the Nebraska Supreme Court hears an appeal
from a final order denying authorization for an abortion without the consent of a
parent or guardian de novo on the record. Accordingly, the court reappraises the
evidence as presented by the record and reaches its own independent conclusions
with respect to the matters at issue.
4. ____: ____: ____: ____. Although the Nebraska Supreme Court’s review of a
final order denying authorization for an abortion without the consent of a parent
or guardian is de novo on the record, the court may consider and give weight to
the fact that the judge below heard and observed the witnesses.
5. Appeal and Error. An appellate court will not consider an issue on appeal that
was not presented to or passed upon by the trial court.
6. Parental Rights: Parent and Child. An order terminating the parent-juvenile
relationship shall divest the parent and juvenile of all legal rights, privileges,
duties, and obligations with respect to each other.
7. Statutes: Appeal and Error. When possible, an appellate court will try to avoid
a statutory construction that would lead to an absurd result.
8. Abortion: Minors: Statutes: Intent. The obvious intent of Neb. Rev. Stat.
§ 71-6903(3) (Cum. Supp. 2012) is to avoid requiring a pregnant woman to
obtain the consent of a parent or guardian who has abused or neglected her, acts
which evidence an obvious disregard of her best interests or well-being.
9. Abortion: Minors: Pleadings: Proof. Under the “evidence of abuse . . . or child
abuse or neglect” provision of Neb. Rev. Stat. § 71-6903(3) (Cum. Supp. 2012),
the pregnant woman must establish that a parent or guardian, who occupies that
role in relation to her at the time she files her petition for waiver of parental con-
sent, has either abused her as defined in Neb. Rev. Stat. § 28-351 (Cum. Supp.
2012) or subjected her to child abuse or neglect as defined in Neb. Rev. Stat.
§ 28-710 (Reissue 2008).
10. Abortion: Minors: Proof. In a proceeding brought under the provisions of Neb.
Rev. Stat. § 71-6901 et seq. (Cum. Supp. 2012), the burden of proof on all issues
rests with the petitioner, and such burden must be established by clear and con-
vincing evidence.
11. Minors: Emancipation. Experience, perspective, and judgment are often lacking
in unemancipated minors who are wholly dependent and have never lived away
from home or had any significant employment experience.
12. Pleadings. The issues in a case are framed by the pleadings.
13. Abortion: Minors: Pleadings. A petition for waiver of parental consent—which
seeks authorization from the court to have an abortion without notarized written
consent of a parent or guardian of the petitioner—is limited in scope. The scope
of this special statutory proceeding is defined by Neb. Rev. Stat. §§ 71-6901,
71-6903, and 71-6904 (Cum. Supp. 2012).
14. Abortion: Legislature. Neb. Rev. Stat. § 71-6903 (Cum. Supp. 2012) is a cre-
ation of the Legislature and did not exist at common law.
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642 286 NEBRASKA REPORTS
15. Abortion: Courts: Jurisdiction. The district court’s jurisdiction over proceed-
ings pursuant to Neb. Rev. Stat. § 71-6901 et seq. (Cum. Supp. 2012) arises from
a legislative grant and is inherently limited by the grant.
16. ____: ____: ____. Because of the limited scope of an action pursuant to Neb.
Rev. Stat. § 71-6901 et seq. (Cum. Supp. 2012), in hearing such a matter, the
district court acts as a special statutory tribunal to summarily decide the issues
authorized by the statute.
17. Constitutional Law: Statutes: Legislature: Courts. When the Legislature has
expressly chosen a judicial forum for the resolution of issues under Neb. Rev.
Stat. § 71-6903 (Cum. Supp. 2012), it is not the Nebraska Supreme Court’s
province to rewrite the statute or suggest alternate or additional procedures to
be utilized in this context, unless the judicial bypass statute violates the state or
federal Constitutions or a federal treaty.
18. Legislature: Declaratory Judgments. The Legislature has authorized a declara-
tory judgment action.
19. Constitutional Law: Jurisdiction: Equity. The equity jurisdiction of the dis-
trict court is granted by the Constitution and cannot be legislatively limited
or controlled.
20. Administrative Law: Minors: Guardians and Conservators. The Nebraska
Department of Health and Human Services is the legal guardian of all children
committed to it.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Catherine Mahern for petitioner.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
P er Curiam.
INTRODUCTION
[1] Generally, an abortion cannot be performed upon an
unemancipated pregnant woman under 18 years of age unless
a physician obtains the notarized written consent of both the
pregnant woman and one of her parents or a legal guardian.1
This proceeding was instituted under the provisions of Neb.
Rev. Stat. § 71-6901 et seq. (Cum. Supp. 2012) by a pregnant
16-year-old (petitioner) seeking authorization for an abortion
without consent of a parent or guardian. The district court
denied her request, and pursuant to the expedited procedures
1
Neb. Rev. Stat. § 71-6902 (Cum. Supp. 2012).
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IN RE PETITION OF ANONYMOUS 5 643
Cite as 286 Neb. 640outlined in § 71-6904, she appeals to this court. Because
we determine that petitioner did not establish by clear and
convincing evidence that she is a victim of abuse or neglect
under § 71-6903(3) or that she is sufficiently mature and well
informed to decide on her own whether to have an abortion, we
affirm the judgment of the district court.
BACKGROUND
Petitioner is 16 years old and 10 weeks along in her preg-
nancy. Due to abuse and neglect by petitioner’s biological
parents, a juvenile court entered an order in February 2011,
placing her temporary custody with the Nebraska Department
of Health and Human Services (Department). A juvenile case
was initiated, and petitioner and her two siblings, ages 9 and
7, were placed in a foster home through the Department. In
May 2013, the juvenile court entered an order terminating
by relinquishment the parental rights of petitioner’s biologi-
cal parents.
At the confidential hearing, petitioner explained her desire
for an abortion. She testified that she would not be able to
financially support a child or “be the right mom that [she]
would like to be right now.” She feared that she might lose her
foster placement if her foster parents learned of her pregnancy.
Petitioner testified that her foster parents have strong religious
beliefs about abortion. She felt that her foster parents “would
not okay” an abortion and that “they would not just be taking
it out on [petitioner], it would also be taken out on the child.”
Petitioner believed that putting the child up for adoption would
be worse for her and her family because her foster parents
would have resentment toward her. Petitioner feared that her
foster parents would tell her siblings that she was a “bad per-
son.” The court stated that “when you have the abortion it’s
going to kill the child inside you,” and petitioner responded
that she understood. Petitioner answered, “Yes,” when the
court asked if she would “rather do that than to risk problems
with the foster care people?”
The district court determined that because the parental rights
of petitioner’s biological parents had been terminated, her
guardians for the purpose of consent to have an abortion would
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be her foster parents. The court found that petitioner was not
sufficiently mature to decide whether to have an abortion. The
court noted that petitioner is 16 years old, is not self-sufficient,
and is dependent upon her foster parents. The court found that
it is not in the best interests of petitioner to have an abortion
without the consent of one of her foster parents. The court
reasoned that “[j]ust because her foster parents have strongly
held religious beliefs, does not mean that they will not act in
the Petitioner’s best interest.” Therefore, the court denied peti-
tioner’s request for an abortion without the consent of one of
her foster parents.
ASSIGNMENTS OF ERROR
Petitioner assigns, reordered, that the district court erred in
(1) failing to recuse itself from the case for lack of impartial-
ity, (2) failing to authorize waiver of parental consent where
there was clear and convincing evidence that there was abuse
as defined in Neb. Rev. Stat. § 28-351 (Cum. Supp. 2012) or
child abuse or neglect as defined in Neb. Rev. Stat. § 28-710(Reissue 2008), (3) finding that there was not clear and con-
vincing evidence that petitioner was both sufficiently mature
and well informed to decide whether to have an abortion, (4)
failing to find that petitioner was entitled to consent to her own
abortion procedure because she is a ward of the State, and (5)
finding that petitioner’s foster parents were her guardians for
the purpose of seeking consent to an abortion.
STANDARD OF REVIEW
[2] The meaning and interpretation of a statute are questions
of law. An appellate court independently reviews questions of
law decided by a lower court.2
[3,4] Under § 71-6904(6), we hear the appeal de novo
on the record. Accordingly, we reappraise the evidence as
presented by the record and reach our own independent con-
clusions with respect to the matters at issue.3 Although our
review is de novo on the record, we may consider and give
2
Pinnacle Enters. v. City of Papillion, ante p. 322, ___ N.W.2d ___ (2013).
3
In re Petition of Anonymous 3, 279 Neb. 912, 782 N.W.2d 591 (2010).
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IN RE PETITION OF ANONYMOUS 5 645
Cite as 286 Neb. 640weight to the fact that the judge below heard and observed
the witnesses.4
ANALYSIS
Before reaching the errors assigned by petitioner, we
digress to note that the Legislature recently made significant
changes to § 71-6901 et seq.5 This case presents the first
opportunity to consider the waiver of consent of a parent or
guardian6 and the provision regarding abuse or neglect of the
pregnant woman.7
R ecusal
[5] Petitioner contends that the judge’s questioning of her
at the end of the proceeding demonstrated a lack of impartial-
ity such that the judge should have recused himself. However,
petitioner did not raise this issue before the district court. An
appellate court will not consider an issue on appeal that was not
presented to or passed upon by the trial court.8 Accordingly, we
do not consider this assignment of error.
Victim of Abuse
or Neglect
Under the pertinent portions of § 71-6903(3), a court must
authorize an abortion without the consent of a parent or a
guardian
[i]f the court finds, by clear and convincing evidence, that
there is evidence of abuse as defined in [§] 28-351 . . .
or child abuse or neglect as defined in [§] 28-710 of the
pregnant woman by a parent or a guardian or that an abor-
tion without the consent of a parent or a guardian is in the
best interest of the pregnant woman . . . .
Petitioner does not argue on appeal that an abortion without
the consent of a parent or a guardian is in her best interests.
4
See In re Petition of Anonymous 2, 253 Neb. 485, 570 N.W.2d 836 (1997).
5
See 2011 Neb. Laws, L.B. 690, §§ 3 through 15.
6
See § 71-6903(2) and (3).
7
See § 71-6903(3).
8
Weber v. Gas ’N Shop, 278 Neb. 49, 767 N.W.2d 746 (2009).
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Thus, we limit our consideration to whether petitioner estab-
lished evidence of abuse or neglect within the meaning of
the statute.
The evidence in the record establishes abuse and neglect
by petitioner’s biological parents, but that does not end our
inquiry under the circumstances of this case. Petitioner’s bio-
logical father fractured her collarbone and shoulder blade in
2011 and was ultimately convicted of third degree assault.
Thus, it is clear that petitioner suffered abuse under § 28-351
by her biological father. The record also establishes that peti-
tioner’s biological mother had a drug problem and that she
did not contest the allegations of neglect contained in the
juvenile petition. There is clear and convincing evidence that
petitioner was a victim of neglect under § 28-710 by her bio-
logical mother.
[6] But the biological parents no longer have any legal rights
or responsibilities relating to petitioner. A court entered an
order terminating the parental rights of petitioner’s biological
parents in May 2013. There was no appeal from the termina-
tion order, and it is a final judgment. “An order terminating
the parent-juvenile relationship shall divest the parent and
juvenile of all legal rights, privileges, duties, and obligations
with respect to each other . . . .”9 Because the parent-child
relationship has been judicially severed in this case, no consent
is required from either of petitioner’s biological parents. And
there is no evidence of abuse or neglect by anyone other than
her biological parents.
Petitioner argues that the district court erred in finding that
the abuse by her biological father in 2011 was not related to
her pregnancy or her ability to seek the consent of her foster
parents. She cites Ebert v. Nebraska Dept. of Corr. Servs.10
and argues that a court cannot read a meaning into a statute
that is not warranted by the language. Petitioner is technically
correct that “[n]othing in the statute makes reference to when
the abuse, or child abuse or neglect must have taken place,
9
Neb. Rev. Stat. § 43-293 (Reissue 2008).
10
Ebert v. Nebraska Dept. of Corr. Servs., 11 Neb. App. 553, 656 N.W.2d
634 (2003).
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IN RE PETITION OF ANONYMOUS 5 647
Cite as 286 Neb. 640nor does the statute state that the abuse must be related to a
woman’s pregnancy.”11
[7] But petitioner’s interpretation of the statutory language
would lead to an absurd result. For example, imagine a child
who was abused by her father as a newborn, whose mother
divorced the father and raised the child in a safe and loving
home, and who 16 years later becomes pregnant and desires an
abortion without her mother’s consent. Under petitioner’s inter-
pretation, the court would automatically have to issue an order
authorizing the abortion without the consent of the pregnant
woman’s mother based solely on abuse by a different parent a
decade and a half earlier. Such a result is illogical and could
not have been intended by the Legislature. When possible, an
appellate court will try to avoid a statutory construction that
would lead to an absurd result.12 Here, petitioner’s interpreta-
tion would lead to the equally absurd result that because she
was abused and neglected by persons from whom no consent is
necessary, no consent from anyone is required. Thus, we reject
petitioner’s interpretation.
[8,9] But an alternative interpretation exists—one that
clearly preserves the intent of the Legislature. The obvious
intent of § 71-6903(3) is to avoid requiring a pregnant woman
to obtain the consent of a parent or guardian who has abused or
neglected her, acts which evidence an obvious disregard of her
best interests or well-being. Here, petitioner was abused and
neglected by her biological parents, and as stated above, she
need not obtain consent from them because their parental rights
have been terminated. We hold that under the “evidence of
abuse . . . or child abuse or neglect” provision of § 71-6903(3),
the pregnant woman must establish that a parent or guardian,
who occupies that role in relation to her at the time she files
her petition for waiver of parental consent, has either abused
her as defined in § 28-351 or subjected her to child abuse or
neglect as defined in § 28-710. Petitioner has failed to meet
this burden.
11
Brief for petitioner at 11.
12
First Nat. Bank of Omaha v. Davey, 285 Neb. 835, 830 N.W.2d 63 (2013).
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648 286 NEBRASKA REPORTS
This does not mean that abuse or neglect by a parent or
guardian must be ongoing or recently inflicted at the time of a
petition for judicial consent. It simply means that the abuse or
neglect must have been inflicted by a parent or guardian who
still functions in that capacity at the time of the petition for
judicial consent.
Mature and Well Informed
[10] Next, we consider whether petitioner established that
she “is both sufficiently mature and well-informed to decide
whether to have an abortion.”13 In a proceeding brought under
the provisions of § 71-6901 et seq., the burden of proof on all
issues rests with the petitioner, and such burden must be estab-
lished by clear and convincing evidence.14
“Maturity is ‘difficult to define, let alone determine . . . .’”15
But it may be measured by examining the minor’s experience,
perspective, and judgment.16 Matters that reflect on a preg-
nant minor’s experience include her prior work experience,
her experience in living away from home, and her handling
of personal finances.17 Her perspective could be determined
by looking “‘for appreciation and understanding of the rela-
tive gravity and possible detrimental impact of each available
option, as well as realistic perception and assessment of pos-
sible short term and long term consequences of each of those
options, particularly the abortion option.’”18 As to a pregnant
minor’s judgment, “‘[t]he exercise of good judgment requires
being fully informed so as to be able to weigh alternatives
independently and realistically.’”19 In evaluating her matu-
rity, a trial court “‘may draw inferences from the minor’s
13
See § 71-6903(2).
14
In re Petition of Anonymous 3, supra note 3.
15
In re Petition of Anonymous 1, 251 Neb. 424, 428, 558 N.W.2d 784, 787
(1997) (quoting Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed.
2d 797 (1979)).
16
See id.17
See id.18
Id. at 429, 558 N.W.2d at 788.
19
Id.Nebraska Advance Sheets
IN RE PETITION OF ANONYMOUS 5 649
Cite as 286 Neb. 640composure, analytic ability, appearance, thoughtfulness, tone
of voice, expressions, and her ability to articulate her reason-
ing and conclusions.’”20 The latter items are matters that we
cannot discern from the cold record before us and are another
reason why we elect to give weight to the fact that the trial
judge heard and observed petitioner in finding her not to be
mature and well informed.
[11] As is undoubtedly typical in such cases, the only tes-
timony we have to review is that of petitioner. She will turn
17 years old in October 2013 and is unemancipated.21 She
testified that she mostly raised her younger siblings because
her parents “were never around.” Petitioner will be a senior in
high school and plans to graduate early—in December—but
she did not adduce any evidence about the grades that she
has received. She wants to move out of her foster parents’
house after she graduates and has saved enough money to live
on her own. Petitioner has not lived on her own, and she is
dependent upon her foster parents for financial support. She
plans to attend college, either in December or after working
for “a little bit.” Petitioner did not testify about any work
experience. “‘Experience, perspective and judgment are often
lacking in unemancipated minors who are wholly dependent
and have never lived away from home or had any signifi-
cant employment experience.’”22 We find that to be true in
this case.
Petitioner has engaged in counseling regarding abortion. She
first testified that she had been to counseling three times, then
said that she had five sessions, and later testified that she “went
three times at, um, one center and then went once at another
and then had two on the phone.” Petitioner’s attorney clarified
that petitioner had six sessions where she either had counsel-
ing or a medical procedure. She has had three ultrasounds and
has heard the unborn child’s heartbeat. She understands that
an abortion would “kill the [unborn] child inside [of her].”
20
In re Doe, 973 So. 2d 548, 552 (Fla. App. 2008).
21
See § 71-6901(5) (defining “[e]mancipated”).
22
In re Petition of Anonymous 1, supra note 15, 251 Neb. at 429, 558
N.W.2d at 788.
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650 286 NEBRASKA REPORTS
Petitioner testified that someone discussed the risks associ-
ated with terminating a pregnancy, including bleeding and a
possibility of death, but petitioner did not otherwise expound
on the substance of the counseling. Nor did she elaborate on
a discussion she had with a cousin’s mother. She presented
no evidence regarding her understanding of the emotional and
psychological consequences of abortion or of the immediate
and long-range implications of the procedure.
Upon our de novo review, we conclude that petitioner has
failed to establish by clear and convincing evidence that she is
sufficiently mature and well informed. Thus, petitioner failed
to establish any of the statutory grounds under § 71-6903(2) or
(3). But petitioner raises other issues relating to her status as a
ward of the State.
Consent for Ward
of State
Petitioner asserts that as a ward of the State of Nebraska,
she has the right to consent to an abortion without the con-
sent of the Department and that the district court “failed to
give the relevant regulation the proper reading.”23 She relies
upon a provision of the Nebraska Administrative Code which
states that “[i]f a ward decides to have an abortion, the consent
of the parent(s) or Department is not required, but notifica-
tion [by the physician or the physician’s agent to the parent]
may be required unless the conditions listed below exist.”24
We first observe that the regulation has not been amended or
superseded in light of the statutory change from parental noti-
fication to parental consent. But assuming that the regulation
remains effective, we find no reason to rely upon it in the case
before us.
Petitioner’s argument fails because (1) it was not raised
before the district court, (2) petitioner invoked a statutory
procedure that circumscribed the specific grounds and the
authorized relief, (3) the district court’s jurisdiction arose from
a legislative grant and was inherently limited by that grant, and
23
Brief for petitioner at 15.
24
390 Neb. Admin. Code, ch. 11, § 11-002.04A (1998).
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IN RE PETITION OF ANONYMOUS 5 651
Cite as 286 Neb. 640(4) petitioner did not seek relief in a forum where it might have
been granted. We briefly discuss each problem.
[12] Although petitioner drew the district court’s attention
to the regulation, she did not raise it as an issue within the
scope of the proceeding. Her petition made no reference to the
Department. The issues in a case are framed by the pleadings.25
The role of the Department was not raised by her petition,
which was a standardized form. During the hearing, petitioner
did offer a copy of the regulation as an exhibit and her attorney
stated that “[i]t indicates it’s the decision of the ward.” But
when asked whether she was offering it as an exhibit or “just as
information” for the court, her attorney responded, “Just infor-
mation for the Court or either way.” Neither the exhibit nor the
response illuminated any issue for the court or proposed any
form of relief. This naturally followed from the limited scope
of the proceeding, which we next examine.
[13] A petition for waiver of parental consent—which seeks
authorization from the court to have an abortion without
notarized written consent of a parent or guardian of the
petitioner—is limited in scope. The scope of this special
statutory proceeding is defined by §§ 71-6901, 71-6903, and
71-6904. Section 71-6901(10) defines “[p]regnant woman”
as “an unemancipated woman under eighteen years of age
who is pregnant or a woman for whom a guardian has been
appointed pursuant to [Neb. Rev. Stat. §§] 30-2617 to 30-2629
[(Reissue 2008 & Cum. Supp. 2012)] because of a finding
of incapacity, disability, or incompetency who is pregnant.”
There is no evidence of any appointment of a guardian for
petitioner under §§ 30-2617 to 30-2629, nor does petitioner
contend that she has such a guardian. Thus, § 71-6901(10)
limited the availability of the procedure to “an unemancipated
woman under eighteen years of age who is pregnant.” Unlike
the situation in In re Petition of Anonymous 3,26 where the
woman was emancipated, petitioner fell within the scope of
this definition. Because petitioner met the definitional require-
ments, § 71-6903(2) and (3) authorized the district court to
25
Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013).
26
In re Petition of Anonymous 3, supra note 3.
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652 286 NEBRASKA REPORTS
consider only three questions: (1) whether petitioner was both
sufficiently mature and sufficiently well informed to decide
whether to have an abortion; (2) whether there was evidence
of abuse, sexual abuse, or child abuse or neglect by a par-
ent or guardian; or (3) whether it was in her best interests to
have an abortion without the consent of a parent or guardian.
Whether a ward needs to obtain consent for an abortion from
the Department is a matter outside the parameters carefully
prescribed by § 71-6903. And § 71-6904 simply provides
the appeal procedure relating to § 71-6903. If petitioner
fails to prove any of the three questions authorized under
§ 71-6903(2) and (3), the statute specifically requires the court
to “dismiss the petition.” This statute provides no mechanism
for other relief.
[14-17] Because the district court’s jurisdiction of this pro-
ceeding arose from a legislative grant, it was inherently lim-
ited by the grant. In Cummins Mgmt. v. Gilroy,27 we recog-
nized that forcible entry and detainer is a special statutory
proceeding designed to provide a speedy and summary method
for an owner to regain possession of real estate. We observed
that the action was a creature of the Legislature and did not
exist at common law.28 The district court’s jurisdiction arises
out of legislative grant, and it is inherently limited by that
grant.29 And when a district court hears such an action, it sits
as a special statutory tribunal to summarily decide the issues
authorized by the statute, and not as a court of general juris-
diction with the power to hear and determine other issues.30
Obviously, the subject matter of a proceeding under § 71-6901
et seq. is very different. But the legal principles are the same.
Section 71-6903 is a creation of the Legislature and did not
exist at common law.31 The district court’s jurisdiction over
27
Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003).
28
Id.29
See id.30
See id.31
See, 1991 Neb. Laws, L.B. 425, § 3; In re Petition of Anonymous 1, supra
note 15.
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IN RE PETITION OF ANONYMOUS 5 653
Cite as 286 Neb. 640proceedings pursuant to § 71-6901 et seq. arises from a legis-
lative grant and is inherently limited by the grant. And because
of the limited scope of an action pursuant to § 71-6901 et seq.,
in hearing such a matter, the district court acts as a special
statutory tribunal to summarily decide the issues authorized
by the statute. When the Legislature has expressly chosen
a judicial forum for the resolution of these issues, it is not
this court’s province to rewrite the statute or suggest alter-
nate or additional procedures to be utilized in this context,
unless the judicial bypass statute violates the state or federal
Constitutions or a federal treaty.32 Petitioner makes no claim
that the statutory procedure violates any constitutional provi-
sion or treaty obligation, but she nevertheless seeks to expand
the issues beyond those authorized by the statute. This court
has no power to do so.
[18,19] This is not a situation where there is no procedure
by which relief could possibly be obtained. The Legislature
has authorized a declaratory judgment action.33 Moreover,
the equity jurisdiction of the district court is granted by the
Constitution and cannot be legislatively limited or controlled.34
But whatever form of action might have been available to
petitioner on this question, it clearly did not arise in a special
statutory proceeding seeking judicial bypass of the parental
consent requirement. Therefore, we do not reach the merits of
this assignment of error.
Guardian
[20] Petitioner also argues that she has no guardian. We
note that the Department is the legal guardian of all children
committed to it.35 Petitioner points us to a statute concerning
guardians of minors36 and asserts that a guardian must file a
petition and be appointed a guardian by a court of competent
32
In re Petition of Anonymous 1, supra note 15.
33
See Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2008).
34
Stoneman v. United Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998).
35
See Neb. Rev. Stat. § 43-905(1) (Cum. Supp. 2012).
36
Neb. Rev. Stat. § 30-2608 (Reissue 2008).
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654 286 NEBRASKA REPORTS
jurisdiction. She argues that there is no evidence that her
foster parents took such action and that thus, they are not
her guardians. But whether petitioner’s foster parents are her
guardians is also a matter outside the scope of this special
statutory proceeding. Accordingly, we do not reach the issue
in this appeal.
CONCLUSION
We do not consider petitioner’s argument that the trial
judge should have recused himself, because petitioner did
not ask him to do so or otherwise question his impartiality
at the trial level. We hold that for a waiver of consent under
the “evidence of abuse . . . or child abuse or neglect” provi-
sion of § 71-6903(3), the pregnant woman must establish that
a parent or guardian, who fills that role at the time she files
her petition, has abused or neglected her. Petitioner did not
meet her burden to show that she is a victim of such abuse or
neglect. Nor did she establish that she is sufficiently mature
and well informed about abortion to have the procedure with-
out the consent of a guardian. Because the sole issues before
the district court were whether petitioner established grounds
for judicial authorization of an abortion without the consent
of a parent or guardian under § 71-6903(2) or (3), we do
not consider whether the Department must grant or withhold
consent for its ward or whether petitioner’s foster parents are
her guardians. Accordingly, we affirm the judgment of the
district court.
Affirmed.
Connolly, J., dissenting.
The petitioner has no legal parents; the juvenile court termi-
nated their parental rights. Her legal guardian, the Department—
by regulation—will not give her consent. And although the dis-
trict court has required her to get her foster parents’ consent to
obtain an abortion, their consent would be meaningless under
the law because they are neither parents nor guardians. She is
in a legal limbo—a quandary of the Legislature’s making.
Under Neb. Rev. Stat. § 71-6902 (Cum. Supp. 2012), there
are three exceptions to the requirement that a minor obtain a
parent or guardian’s written, notarized consent to an abortion:
Nebraska Advance Sheets
IN RE PETITION OF ANONYMOUS 5 655
Cite as 286 Neb. 640Except in the case of a medical emergency or except as
provided in sections 71-6902.01, 71-6903, and 71-6906,
no person shall perform an abortion upon a pregnant
woman unless, in the case of a woman who is less than
eighteen years of age, he or she first obtains the notarized
written consent of both the pregnant woman and one of
her parents or a legal guardian . . . .
Neb. Rev. Stat. §§ 71-6902.01 and 71-6906 (Cum. Supp. 2012)
are, respectively, statutory exceptions to the consent require-
ment for victims of abuse and medical emergencies. I agree
with the majority opinion that the exception for child abuse
was intended to apply to the minor’s current parents or guard-
ians. And there was not a medical emergency.
This leaves only the judicial bypass procedure under
§ 71-6903, which provides:
(2) If a pregnant woman elects not to obtain the con-
sent of her parents or guardians, a judge of a district
court, separate juvenile court, or county court sitting as a
juvenile court shall, upon petition or motion and after an
appropriate hearing, authorize a physician to perform the
abortion if the court determines by clear and convincing
evidence that the pregnant woman is both sufficiently
mature and well-informed to decide whether to have
an abortion.
Under this section, the petitioner’s election not to obtain the
consent of a parent or guardian is a jurisdictional prerequisite,
and because such consent was impossible to obtain here, there
was no election. As such, I conclude that the court lacked sub-
ject matter jurisdiction to consider the petitioner’s request for
judicial bypass.
We have explained that subject matter jurisdiction is the
power of a tribunal to hear and determine a case in the general
class or category to which the proceedings in question belong
and to deal with the general subject matter involved.1 No one
disputes that the district court has the power to generally hear
and decide these types of cases. “‘But the question of a court’s
subject matter jurisdiction does not turn solely on the court’s
1
See Young v. Govier & Milone, ante p. 224, 835 N.W.2d 684 (2013).
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656 286 NEBRASKA REPORTS
authority to hear a certain class of cases.’”2 Instead, “‘[i]t also
involves determining whether a court has authority to address
a particular question that it assumes to decide or to grant the
particular relief requested.’”3
Based on the language of § 71-6903(2), the district court
only “has authority . . . to grant the particular relief requested”
if the petitioner has elected not to obtain the consent of a par-
ent or guardian. To “elect” is to “choose.” The petitioner did
not choose to forgo consent of a parent or guardian; instead,
such consent was impossible for her to obtain. Obviously, the
petitioner has no parents to consent because the juvenile court
terminated their parental rights. And it was impossible for the
petitioner to obtain the written, notarized consent of her legal
guardian, the Department.
When a court terminates parental rights to a minor ward,
the Department makes all the medical decisions for the ward.4
Except one. The Department’s regulations show that it defers
to a ward’s decision to have an abortion. So the Department
effectively consents to a minor ward’s decision by default.
More important here, however, its regulations prohibit a case-
worker from explicitly giving or withholding consent for an
abortion:
A female ward has the right to obtain a legal abor-
tion. The decision to obtain an abortion is the ward’s.
The child’s worker will provide unbiased information
to the ward regarding alternatives and appropriate agen-
cies and resources for further assistance. The worker will
not encourage, discourage, or act to prevent or require
the abortion.
If a ward decides to have an abortion, the consent of
the parent(s) or Department is not required . . . .5
2
Nebraska Republican Party v. Gale, 283 Neb. 596, 599, 812 N.W.2d 273,
276 (2012), quoting In re Interest of Trey H., 281 Neb. 760, 798 N.W.2d
607 (2011).
3
Id.4
See, 390 Neb. Admin. Code, ch. 7, § 001.01 (1998); 390 Neb. Admin.
Code, ch. 11, §§ 002.04E and 002.04F (2000).
5
390 Neb. Admin. Code, ch. 11, § 11-002.04A (1998).
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IN RE PETITION OF ANONYMOUS 5 657
Cite as 286 Neb. 640As such, the petitioner could not obtain written, notarized con-
sent from either a parent or a guardian.
The petitioner raised these points at the trial level. The
petitioner’s appointed attorney specifically submitted evi-
dence showing that (1) the parents’ parental rights had been
terminated; (2) the juvenile court had committed the peti-
tioner to the Department’s custody; (3) the Department had
placed her in a foster home under the Department’s supervi-
sion; and (4) the Department will not give or withhold con-
sent for an abortion. Given these facts, the court could not
conclude that the petitioner had elected not to obtain consent.
And unless a court makes this finding, there is no predicate
upon which the court could exercise its jurisdiction in a judi-
cial bypass proceeding.
Moreover, the district court was wrong to conclude that
the petitioner’s foster parents were “her guardian[s] for [the]
purpose of consent.” The petitioner’s foster parents are not
her guardians. The court’s commitment of a child to the
Department means that the Department is his or her tempo-
rary legal guardian until a permanency plan is achieved or the
child reaches majority.6 Nor are the petitioner’s foster parents
on the same level as guardians; a foster parent’s rights and
responsibilities in caring for a ward of the State “are deriva-
tive of and subject to the custodial authority possessed by the
[state] agency.”7 And noticeably, the Department authorizes
foster parents to obtain only routine immunizations and medi-
cal care for a foster child, under a caseworker’s supervision
and direction.8 This means a foster parent has no authority to
give consent for a foster child’s abortion or any other major
medical procedure.
It is not surprising that a health care provider or a pregnant
minor would mistakenly conclude that she could obtain a
court’s authorization for an abortion when she does not have
6
See, Neb. Rev. Stat. § 43-285(1) (Cum. Supp. 2012); In re Interest of
Antonio S. & Priscilla S., 270 Neb. 792, 708 N.W.2d 614 (2005).
7
3 Donald T. Kramer, Legal Rights of Children § 29:4 at 153 (rev. 2d ed.
2005).
8
See 390 Neb. Admin. Code, ch. 7, § 003.04 (2000).
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658 286 NEBRASKA REPORTS
a parent or guardian who can give consent. But this confusion
exists because the Legislature has assumed under § 71-6902
that all minors will have a parent or guardian who can give
consent. As this case illustrates, however, that is not always
true. Here, that the petitioner has no parents and that the
Department refuses to give or withhold consent for a ward’s
abortion creates jurisdictional problems under the written con-
sent requirement that did not exist under the pre-2011 notifi-
cation requirement. Summed up, a petitioner cannot “elect[]
not to obtain” a written consent that no person or entity may
legally give her. There was no triggering event to invoke the
court’s jurisdiction under § 71-6903(2).
But the majority opinion ignores these jurisdictional prob-
lems by not addressing the effect of the Department’s regula-
tion refusing to give or withhold consent for a minor ward’s
abortion. The majority opinion implies that the regulation
may no longer be effective because in 2011 the Legislature
changed the statutes from a requirement of parental notifica-
tion to a requirement of parental consent. But even if it is
effective, the majority opinion concludes it need not address
the regulation’s effect for these additional reasons: (1) The
petitioner did not properly raise the issue to the district court;
(2) the court’s jurisdiction in a judicial bypass procedure is
limited to the narrow issues to be decided; and (3) the peti-
tioner did not seek relief in a proper forum. I disagree with
each of these reasons.
At the outset, I note that the majority opinion incorrectly
implies that the regulation is possibly ineffective because of
the 2011 amendments. Agency regulations that are properly
adopted and filed with the Secretary of State of Nebraska
have the effect of statutory law.9 And we deal with the law as
it is enacted and promulgated. Furthermore, because there are
multiple reasons to support the regulation, this court should
not implicitly conclude that the Department’s decision not to
change its regulations in response to the 2011 amendments is
9
Smalley v. Nebraska Dept. of Health & Human Servs., 283 Neb. 544, 811
N.W.2d 246 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 1631, 185 L. Ed.
2d 616 (2013).
Nebraska Advance Sheets
IN RE PETITION OF ANONYMOUS 5 659
Cite as 286 Neb. 640mere inadvertence or a reason to avoid the regulation’s effect
in this proceeding.
It is not surprising that the Department would conclude that
its consent is not required for a minor ward’s abortion. The
U.S. Supreme Court has held that states may impose parental
consent and notification requirements on a minor seeking an
abortion to ensure that an immature minor has the guidance of
a parent. The rule is grounded in the constitutional protection
afforded a parent’s role in guiding the upbringing of his or
her children.10 And the absence of a parent with a recognized
interest in guiding the minor’s upbringing and decisionmaking
negates that rationale.
Of course, even when a parent-child relationship does not
exist, the State has responsibilities and legitimate interests in
protecting a minor ward from harm. Moreover, the State has
an interest in ensuring that her decision has not been coerced
and in determining whether her pregnancy is the result of a
sexual assault or child abuse. These concerns are obviously
relevant to whether an abortion is in a minor’s best interests
under § 71-6903(3). And determining the petitioner’s best
interests was further complicated by her lack of a permanent
family’s support.
The Department, however, has abdicated its role in deter-
mining these issues. And despite the State’s interest in protect-
ing a minor ward’s well-being, there are at least two reasons
(and probably others) that the Department would nonethe-
less decline to advise a ward or consent to an abortion.
Commentators have pointed out that state agencies frequently
will not authorize an abortion for minor wards because no fed-
eral funding is available for the procedure or out of concerns
that caseworkers will impose their own biases.11
As to the majority opinion’s first reason for not relying on
the regulation, this court cannot ignore jurisdictional prob-
lems because they were not raised in the “pleadings.” An
10
See Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797(1979).
11
See Rachel Rebouché, Parental Involvement Laws and New Governance,
34 Harv. J.L. & Gender 175 (2011).
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660 286 NEBRASKA REPORTS
appellate court has the duty to determine whether the lower
court had the power to enter the judgment or other final
order sought to be reviewed.12 Furthermore, the pleading for
a judicial bypass is a form with blanks and checkmarks. It is
intended to be a simple filing that a minor can navigate. The
court does not appoint an attorney for the minor until after
the minor files the petition. There is no place on this form for
a petitioner to raise jurisdictional problems. And requiring a
minor to meet the pleading standards of an attorney would
likely place unconstitutional burdens on a minor seeking
an abortion.13
As to the majority opinion’s second reason for not rely-
ing on the regulation, the majority cannot avoid jurisdictional
issues on the ground that a statutory proceeding is limited in
the issues to be decided. Again, an appellate court has the duty
to determine whether the lower court had the power to enter
the judgment or other final order sought to be reviewed.14
And a court’s authority to act is never outside the scope of
any proceeding.
And, finally, as to the majority’s third reason for not rely-
ing on the regulation, this is the proper forum to determine the
effect of the Department’s regulation. As noted above, whether
the petitioner’s legal guardian can provide written, notarized
consent for her abortion is a jurisdictional prerequisite for the
court to entertain her request for judicial bypass. Furthermore,
the majority’s suggestion that the petitioner should have filed a
declaratory judgment action to raise the consent issue ignores
constitutional requirements. States that require parental notifi-
cation or consent for an abortion are constitutionally required
to provide expeditious proceedings for minors who claim that
they do not need consent.15 The Legislature has enacted the
statutes in article 69 of chapter 71 of the Nebraska Revised
Statutes specifically to create a cost-free and expeditious
12
See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678
N.W.2d 726 (2004).
13
See Bellotti, supra note 10.
14
See Smith, supra note 12.
15
See Bellotti, supra note 10.
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IN RE PETITION OF ANONYMOUS 5 661
Cite as 286 Neb. 640proceeding. Declaratory judgment actions obviously do not fit
that description.
Because the petitioner never “elect[ed]” not to get the con-
sent of a parent or a guardian to seek an abortion, the court
did not have jurisdiction to entertain her request for judicial
bypass under § 71-6903(2). I realize that this conclusion means
that none of the statutory exceptions apply and that under
§ 71-6902, the petitioner is prohibited from obtaining an abor-
tion. An absolute ban on the petitioner’s right to seek an abor-
tion obviously raises constitutional concerns. But the petitioner
did not challenge the statutes as unconstitutional.
McCormack, J., joins in this dissent.