In the Matter of Anonymous, a Minor.

964 So. 2d 1239 (2007)

In the Matter of ANONYMOUS, a minor.

2060558.

Court of Civil Appeals of Alabama.

April 4, 2007.

PER CURIAM.

An unemancipated minor filed a petition in an Alabama juvenile court pursuant to § 26-21-1 et seq., Ala.Code 1975, seeking a judicial waiver of parental consent for an abortion. The minor waived the appointment of counsel, but the juvenile court appointed a guardian ad litem to represent her. Following a hearing, at which only the minor testified, the juvenile court denied the petition. The minor appeals.

The transcript of the hearing on the minor's petition comprises 12 double-spaced pages. The minor testified at the hearing that she was at that time 17 years old and 12 to 14 weeks pregnant. The minor stated that she lives with her mother and her stepfather and that her father lives in another town. The minor testified that she has lived with her mother and stepfather the majority of her life, but that she has also maintained a relationship with her father. The minor, a senior in high school, testified that she found out that she was pregnant after taking a home-pregnancy test. She subsequently went to a hospital, where a second, "medical" pregnancy test confirmed that she was pregnant.

The minor testified that she has not told her mother and stepfather that she was pregnant because she fears that they would "kick her out" of the house. According to the minor, the mother and stepfather had warned her that they would "kick her out" of the house if she ever became pregnant. The minor testified that she would have nowhere to go if she were forced to leave her mother and stepfather's house. The minor testified that she has never had a discussion with her father regarding the possibility of her becoming pregnant. The minor testified that she did not believe that either of her parents would consent to her having an abortion.

The minor testified that she understood the gravity of her decision to seek an abortion. The minor stated that she had discussed her decision with her boyfriend, who she said is the father of the unborn child. The minor testified that she had considered the possibility of seeking assistance from her boyfriend's parents, but expressed concern that even with assistance she would "still be stuck with a baby that [she does not] want." According to the minor, at the time of the hearing the boyfriend had not discussed the minor's pregnancy with his parents.

The minor assured the juvenile court that she had considered all her options and had also considered the health risks associated with the abortion procedure. However, the minor testified that, at the time of the hearing, she had not talked to a counselor regarding her decision to have an abortion. The minor testified that the only adults she had spoken to before filing her petition for a waiver of parental consent were the doctor who performed her "medical" pregnancy test and the doctor's nurse. The minor testified that she and the nurse discussed "possibilities" and whether the minor should tell her parents about the pregnancy. The minor's testimony did not indicate that she had discussed with a doctor or counselor the physical, psychological, or emotional risks that might be associated with the abortion procedure.

A juvenile court shall grant a petition for a waiver of parental consent to an abortion if it finds either "(1) [t]hat the minor is mature and well-informed enough to make the abortion decision on her own; or (2) [t]hat performance of the abortion would be in the best interest of the minor." § 26-21-4(f), Ala.Code 1975 (emphasis added). See Ex parte Anonymous, 595 So. 2d 497, 498 (Ala.1992). However, the "petition for waiver of parental consent may be denied only if the court specifically finds both [(1) that] the minor is immature and not well enough informed to make the abortion decision on her own and (2) that performance of the abortion would not be in her best interests." Ex parte Anonymous, 595 So.2d at 498. A juvenile court's order on a petition for a waiver of parental consent must contain written, specific factual findings and legal conclusions supporting its decision. § 26-21-4(g), Ala.Code 1975.

In Ex parte Anonymous, 803 So. 2d 542 (Ala.2001), our supreme court explained the application of the ore tenus rule in cases of this type:

"We find that in a case where a minor seeks a waiver of parental consent for an abortion and no adverse party cross-examines her or otherwise challenges her testimony, a rule compelling acceptance of undisputed live testimony as true — without affording any deference to the trial court's ability to observe and assess the demeanor of the witness—is unsound. In such a case—where the trial court has had the opportunity to observe the witness and where assessments of the level of the minor's maturity are crucial—the trial court's findings should be afforded considerable deference. Here, the trial judge had the responsibility of determining the facts. In particular, it was the trial judge's responsibility to determine whether the petitioner is mature enough and well-informed enough about the abortion procedure to make an independent decision whether to undergo an abortion without parental consent. See § 26-21-4(f), Ala. Code 1975. In addition to hearing the testimony, the trial judge could observe the minor and could consider her demeanor as she testified. That aspect of the evidence is denied an appellate court by a cold record. The trial judge was in a far better position than are we to determine, as a matter of fact, the minor's maturity and level of knowledge."

803 So.2d at 546. Under the ore tenus rule, the juvenile court's judgment is presumed correct unless its factual findings are plainly erroneous or manifestly unjust. Ex parte Anonymous, 803 So.2d at 546.

At the outset, the minor contends that the transcript of the hearing on her petition omits approximately 30 to 45 minutes of a discussion between the minor, the juvenile court judge, the guardian ad litem, and a juvenile intake officer that occurred before going "on the record." The minor refers to numerous facts in support of her arguments on appeal that are not contained in the record on appeal and, in essence, asks this court to look beyond the record on appeal to the assertions made in her brief. "[O]ur supreme court has stated that an appellate court is limited to a review of the record, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel." Quick v. Burton, 960 So. 2d 678, 681-82 (Ala.Civ.App.2006) (citing Wal-Mart Stores, Inc. v. Goodman, 789 So. 2d 166, 176 (Ala.2000), and Gotlieb v. Collat, 567 So. 2d 1302, 1304 (Ala.1990)). In addition, the minor did not file a statement pursuant to Rule 10(d), Ala. R.App. P., including the alleged untranscribed portion of the hearing as part of the record on appeal. Therefore, we will not consider the additional evidence offered by the minor in her brief on appeal.

The minor contends on appeal that the juvenile court's order does not adequately set forth specific factual findings and legal conclusions supporting its decision as required by § 26-21-4(g). In its order, the juvenile court made the following pertinent findings when it denied the minor's petition for a waiver of parental consent:

"(1) The [minor] is 17 years of age, is unmarried and unemancipated, [and] is approximately 12 to 14 weeks pregnant. . . .

"(2) The minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor child.

"(3) The minor child . . . has had only a brief consultation with a nurse practitioner, when the results of the pregnancy test were given and has not consulted with any other party.

"(4) The minor child has not consulted with a physician, nurse practitioner, counselor or any other medical professional or adult concerning her health, well being, and interest when an abortion procedure is performed or any other viable alternatives."

Contrary to the minor's assertion on appeal, the trial court's order complies with § 26-21-4(g), by making specific factual findings regarding the minor's failure to consult with health-care professionals regarding the physical, psychological, and emotional ramifications of undergoing an abortion procedure and the minor's failure to address viable alternatives to having an abortion. Given the brevity of the transcript and the limited facts in the transcript, the factual findings made by the juvenile court in its order support its conclusion that "[t]he minor is not mature and well informed enough to make the abortion decision and the performance of the abortion is not in the best interest of the minor child."

The minor further contends on appeal that the juvenile court's findings that she was not mature enough and not well-informed enough about the abortion decision and that having an abortion was not in her best interest were unsupported by the evidence. The minor's testimony revealed that she filed the petition for a waiver of parental consent based on a conversation she had had with her mother and stepfather at some point before she became pregnant, during which the mother and stepfather told the minor that they would require her to leave their house if she were to become pregnant. The minor testified that she sought the waiver because "[she did not] want to have nowhere to go." The minor testified that even if her parents would be willing to assist her, she would "still be stuck with a baby that [she does not] want."

The minor testified that the only adults she had consulted regarding her pregnancy were the doctor who gave her the result of her "medical" pregnancy test and the doctor's nurse. The minor did not indicate in her testimony that she had discussed with the doctor the physical risks of undergoing an abortion procedure or the alternatives to having an abortion. When the juvenile court asked her what type of questions she and the nurse had gone over, the minor responded:

"Just — I mean, the possible — the possibilities considering that I am only 17 and, like, just what I should — what I could do and if I shouldn't tell my parents and if I — I mean, they told me if I ever — if I just needed to talk to someone that I could come back."

The minor's testimony also did not indicate that she had discussed with a doctor, a nurse, or a counselor any potential psychological or emotional problems that might arise after having an abortion.

"[T]he burden of proof with respect to both the maturity/well-informed prong and the best-interest prong of § 26-21-4(f) lies with the minor." In re Anonymous, 833 So. 2d 75, 78 (Ala.Civ.App.2002). Regarding evidence of the maturity of the minor here and whether she was well-informed enough to make the abortion decision on her own, the minimal evidence presented by the minor revealed that she had not discussed with an adult either the physical risks or emotional consequences of having an abortion in order to enable her to make a well-informed decision. In her brief testimony, the minor also presented very little evidence as to whether an abortion would be in her best interest: she testified that, if she were forced to tell her mother and stepfather that she was pregnant, they would "kick her out" and she would have nowhere to go. The minor provided no evidence of any plans she had for the future and how continuing her pregnancy would affect those plans, other than her testimony that she believed she would have no place to live if she was unable to have the abortion. The minor did not testify as to how her father might react to the news of her pregnancy or his willingness to assist her.

In Ex parte Anonymous, 889 So. 2d 525, 525-26 (Ala.2003), our supreme court held that the minor in that case failed to meet her burden of proof as to whether an abortion was in her best interest. In so holding, our supreme court concluded that the minor failed to meet her burden of proof "as to the best-interest prong, particularly in light of the absence of evidence as to the attitude or ability of the minor's father to assist her and as to whether an abortion is in her physical and emotional best interest." Like the minor in Ex parte Anonymous, the minor in this case provided no testimony regarding her father's attitude or ability to assist her and whether an abortion would be in her physical and emotional best interest.

Based on the testimony of the minor in this case, the juvenile court was not persuaded that the minor was mature and well-informed enough to make the decision to have an abortion, nor was it persuaded that the performance of the abortion was in the best interest of the minor. After reviewing the minor's testimony, we cannot conclude that the juvenile court's judgment in this regard was "plainly erroneous or manifestly unjust." Ex parte Anonymous, 803 So.2d at 546.

The minor also contends on appeal that the trial court failed to enter its order within 72 hours of the filing of the minor's petition for a waiver of parental consent as required by Rule 2, Temporary Rules Governing Procedures for Petitions by an Unemancipated Minor Requesting Waiver of Parental Consent for the Performance of an Abortion, and that, therefore, the waiver should be granted. Rule 2 provides, in pertinent part:

"In cases arising out of the jurisdiction of the trial court over an unemancipated minor, who files a petition for a waiver of written consent of a parent or legal guardian to the performance of an abortion, the trial court shall, within seventy-two (72) hours from the filing of the petition, render and enter its final judgment."

That provision of Rule 2 requiring a ruling by the juvenile court within 72 hours of the filing of the petition is taken from Ala.Code 1975, § 26-21-4(e), which in turn reflects the principle espoused in Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979) — that resolution of the issue and any appeal in a case involving a request by a minor for a waiver of parental consent for an abortion "will be completed with anonymity and sufficient expedition to provide an effective opportunity" for the minor to obtain an abortion if a waiver is due to be granted. 443 U.S. at 643-44, 99 S. Ct. 3035 (emphasis added).

The record on appeal reveals that the minor filed her petition for a waiver of parental consent to an abortion on March 12, 2007. The juvenile court then set the matter for a hearing to be held the following day. On March 13, 2007, the juvenile court rendered its judgment denying the minor's petition and entered that judgment in the wrong division of the circuit court.^[1] On March 19, 2007, the juvenile court's order was entered in the proper division of the circuit court.

The minor has not demonstrated on appeal that the juvenile court's failure to comply with Rule 2 amounts to reversible error. Section 26-21-4(e), Ala.Code 1975, and Rule 2, Temporary Rules Governing Procedures for Petitions by an Unemancipated Minor Requesting Waiver of Parental Consent for the Performance of an Abortion, do not expressly mandate reversal on appeal should the juvenile court fail to "render and enter" its final judgment within 72 hours of the filing of the petition for a waiver of parental consent. Absent such an express mandate, we cannot agree that a breach of the 72-hour rule is such a default that a judicial waiver must issue, especially where the legislature has expressly found "that parental consultation is usually desirable and in the best interests of [a] minor" contemplating an abortion. Ala.Code 1975, § 26-21-1(b).

Based on the foregoing, the judgment of the juvenile court denying the minor's petition for a waiver of parental consent is due to be affirmed.

AFFIRMED.

All the judges concur.

NOTES

[1] The county in which the minor filed her petition contains two divisions.