*1 In re Jane DOE 2.
No. 00-0191. of Texas.
Supreme Court
March *2 notify minor’s “best interest (3) that was “no evi-
parents”; and there par- minor’s] dence that notification of [the sexual, emo- physical, lead to ents ” *3 tional abuse.... then concluded sua The court sponte judicial provision of bypass that the notification law was unconsti- parental the First, pro- for tutional three reasons. the a trial court’s two-day vision’s deadline for infringed judicial the determination and, thus, function violated Texas Con- OPINION separation-of-powers clause.3 stitution’s opinion Justice ENOCH delivered Second, confidentiality provi- the statute’s Court, in which Chief Justice the Texas Constitution’s sions violated PHILLIPS, BAKER, Justice Justice third, by- open provision.4 And courts O’NEILL, HANKINSON, Justice two-day period time violat- pass provision’s joined, and which Justice GONZALES process.5 Affirming, ed fundamental due joined in Part VII. Justice OWEN appeals court of stated that decision findings on the court’s was based I. fact, it did reach consequently and that court of affirmed the trial appeals questions. constitutional the trial court’s request court’s denial of a minor’s Here, all of the trial challenges Doe three waiver of notification to obtain findings. also asserts court’s factual She judgments abortion. We vacate in not appeals erred the court of appeals the trial court and court of bypass provision’s consti- considering the proceedings court remand to the trial tutionality provision is consti- and that opinion. consistent with this tutional. this hearing in case Because the II. In re Jane opinion before our conducted pregnant, unemancipated Doe is a Jane (Doe ),6 Doe and because 33.003, minor. Code section Under 33.003’s previously considered section court for an applied the trial order prongs, potential abuse best interests to have an allowing her judgments vacate the we trial court
notifying parents.1 court for and remand to the trial below and, attorney as the appointed opinion hearing light new permits, designated also Family Code 1.Doe li- ad attorney guardian to serve as de- hearing After a trial court tem.2 III. application and made the nied the follow- (1) Doe contends findings: that the minor was factual mature finding that she was not well erred sufficiently not mature and informed sufficiently well consent without noti- informed to decide to have an abortion (2) of her notifying either that was an abortion without fying parents; of her either II, § Const., § 1. See Tex. Fam.Code 33.003. 3. art. 1. Tex. I, § 4. Tex. art. Const., 33.003(e). recognize § We that this
2. See id. capacity may a conflict interest. dual create I, Const., Tex. art. case, however, the record reveals no In this such conflict. Doe which was be in [her] decided “notification case, hearing after the trial court’s in this we interests....”11 Before determine forth showings we set three that a minor claim, merits of Doe’s must first decide we must make to establish she is suffi- applies what a trial standard review First, well ciently informed. “she must un- court’s interests” determination “best show that she has information obtained der this statute. provider from a health-care about health risks associated an abortion an appellate We conclude that and that she understands those risks.”7 court should review a trial court’s determi Second, “she show must that she under- regarding nation whether notification is stands alternatives to abortion and *4 the minor’s interests under the abuse implications.”8 Third, their “she must of “ma discretion standard. Unlike the that she show also aware of the emotion- sufficiently ture and deter well informed” al psychological aspects and undergoing of abortion_”9 mination, in which trial solely the court is question On the of ma- turity, making findings, determining we held that if a court determines factual the enough the minor is not mature requires minor’s best interests notify- decide have an abortion without possible court to balance and benefits parents, “the court should make to the in notifying detriments minor specific findings concerning its determina- parents. type This of balancing necessari tion meaningful so there can be re- ly judicial of involves the exercise discre appeal.”10 view on tion and should be reviewed on that bas Because we our opinion delivered Moreover, many family is.12 other law 1 case, the Doe contexts, hearing after custody,13 as and adoption,14 such I factors were not available for the trial support,15 child we review a trial court’s reason, court apply. For the same findings best interests for abuse of discre minor could not know the evidence to (We however, tion. recognize, that courts 1Doe needed to meet factors. On of appeals have reviewed best interests remand, the trial at should consider a sub- in termination-of-parental- determinations sequent hearing whether Doe was “mature rights juvenile justice and matt cases16 sufficiently and well in light informed” legal ers17 sufficiency.) and factual Doe 1. discretionary Because of nature
IV. trial and court’s determination the similari ty findings to review best interests challenges Doe also the trial court’s de- application contexts, nial of her ground other family law we hold 716, W.E.R., 14. 7. Id. at 256. 669 S.W.2d 716 re See In (Tex. 1984). 8. 256. Id. at 108, 15. See 801 S.W.2d Stamper, Worford (Tex. 1990). 109 9. Id. at 256. 190, See, M.D.S., 1 S.W.3d 200 e.g., In re 1999, (Tex.App. pet.); no re Id. — Amarillo 364, R.D., (Tex.App. S.W.2d 368 955 — San Antonio, denied); pet. Dep't Edwards v. Texas Tex.Fam.Code§ Servs., 946 Regulatory Protective 130, 1997, (Tex.App. S.W.2d Paso no — El 253; 1, 12. See Doe Tire, 19 S.W.3d at General writ); Dep’t Dupree v. Texas Protective 520, (Tex. 970 S.W.2d Kepple, Inc. v. (Tex. Servs., 907 S.W.2d Regulatory 86-87 1998). 1995, writ). App. no — Dallas 13. See S.A.M., 17. See In re Gillespie Gillespie, (Tex. 1982). writ). (Tex.App. Antonio — San the minor ship parent between proper abuse of discretion is the standard on that rela- and the effect notification review. An that courts tionship.21 additional factor setting guidelines Before out jurisdictions have considered is other determination, we note the best interests lead the whether specifically found that sup- and financial to withdraw emotional notify it would be in Doe’s best interests to list is not port from the minor.22 This That proper inqui is not exhaustive, in making the best-inter- statute, ry which under the directs determination the court should ests “notification to consider whether all relevant circumstances. We consider interests of the best however, note, generalized that minor’s minor....”18 not, by telling fear of does notifica itself, To determine whether notification would establish that would not be the minor’s best inter tion be in the minor’s best interests.23 ests, weigh the trial court should the ad Also,
vantages disadvantages maturity with the determi nation, situa specific meaningful appellate pos notification in minor’s review is specific Although tion. the best interests determi if the trial court makes sible *5 necessarily evaluating its that the findings nation involves about determination to abuse of that notification is whether could lead minor not shown minor, if Similarly, included the the in her best interests.24 separate depends as a rea on potential the for abuse determination the court’s credibility, it it bypass son for a makes clear granting its assessment minor’s iss findings determination en on that specific that the best interests should make mi compasses a broader concern for the ue.25 Adams,19 Holley In we
nor’s welfare.
record,
reviewing
we
Upon
this
developed a list of non-exhaustive factors
a
conclude that the trial court abused
determining
for
minor’s
interests.20 cannot
best
finding
of law in
are
when
discretion as matter
Four of these factors
relevant
its
notifying
not established that
to the
notification con
that Doe had
adapted
best inter
text,
parents would not be
her
and a trial court should consider
(1)
remand,
at a
the trial court
determining
the
ests. On
them
best interests:
needs;
(2)
the
hearing
stan
subsequent
apply
should
physical
minor’s emotional or
to de
opinion
dards we articulate
physical
of
possibility
the
emotional
(3)
minor;
whether notification would not
stability
of
termine
danger
The trial
notification in the minor’s best
interest.
the minor’s home and whether
find
specific
also make
lasting harm to
court should
cause serious and
would
(4)
structure;
necessary for its determination.
family
ings
relation-
added).
applying parental
no-
33.003(i)(emphasis
ests determination in
Tex.
Fam.Code
statute).
tification
(Tex. 1976).
19.
preponderance the supports evidence so Appellate comes from Texas Rule of finding that may lead abuse. 60.2(f), Procedure which allows us to “va For meaningful appellate review the trial the judgment cate lower court’s and re court must make specific findings concern- for proceedings mand the case further in the potential Similarly, for abuse.29 light of law.”31 changes Although the trial the court the determines that minor’s we never used this rule to remand for testimony potential about abuse is court,32 a new the trial the hearing rule’s credible, it should also make find- specific plain preclude language does not us from regard.30 ings doing particularly so. This rule is well- one,
That
suited to situations such as this
provided
we have
trial
where
making findings
apply
requirements
courts forms for
of fact
courts must
the
of a
Here,
of
prevent
statutory
and conclusions
law should not
unique
novel
scheme.
§
26. Tex.
See
at
Doe
28. Where is sufficient to Bacon v. General (Tex. 1992); Welex, gist testimony application the from the Broom, hearing, quote testimony we will not be- Div. Halliburton Co. (Tex.1991) (both remanding cause the statute that the mandates record to the court appeals light remain confidential. See Tex. for reconsideration in Fam.Code 33.003(k). law). changes in the constitutional,37 pre- on that remanding subsequent hearing ap- for a is attacks generally the trial court conducted propriate sumption because should be raised we decided Doe hearing its before affirmative defense to enforcement of the for which we established the factors appropri- statute.38 the absence informed” sufficiently “mature and well de- raising issue of unconsti- pleading ate termination, we had and before considered trial is tutionality, generally court potential the best interests and abuse the issue.39 authority reach disposition Our thus allows Jane prongs. The minor raise a constitutional could evidence based on present Doe to herself, but time constraints of- challenge opinion land this and allows may challenge impracti- ten make such to evaluate that evidence based these provides expedited, for an Chapter cal. opinions. two confidential, hearing and nonadversarial determining whether the minor VII. notice. an abortion without obtain Finally, we consider the trial states, parental notifica- In other similar Chapter 33 court’s determination that chal- bypass provisions tion have been vio Code an unconstitutional lenged through de- parties interested clause,33 separation-of-powers lation of the judgment actions.40 claratory open provision,34 proc and due the circumstances of this case Under ess.35 trial court raised this issue unique proceed- context of this sponte suet argument without benefit the trial court erred ing, we conclude that argues that the briefing. Doe statute deciding the constitu- raising in both constitutional and that erred Accordingly, we reverse that tional issue. ques addressing these constitutional part judgment of the trial court’s deter- agree in this tions case. We mining the to be unconstitutional statute addressing constitution court erred merits, and, va- without reference express no on them. opinion al issues and part judgment. cate that previously We have cautioned constitutionality of a statute VIII. ques considered when should be reasons, remand Jane For the above we and such determina properly tion raised *7 pro- to trial court for application Doe’s a necessary appropriate tion is to deci opinion. The ceedings with this is that consistent presumption the case.36 The sion con- court must be Legislature proceedings in the trial by our is a statute enacted City Const, Pub. Co. v. I, 39. See Houston Chronicle § 2. Tex. art. 33. Houston, 177, (Tex.Civ. S.W.2d 183 531 Const, I, § art. 13. Tex. 1975), App. Dist.] writ [14th ref'd — Houston n.r.e., (Tex. 1976); Dreyer 559 536 S.W.2d cf. Const, I, § art. 35. Tex. 697, Greene, (Tex.l993)("a v. 871 S.W.2d 698 claim, claim, 350, Wood, including a constitutional must Tex. 320 36. See Wood v. 159 807, (1959)(“constitutionality of a court in order 813 have been asserted in the trial ques- only statute will be considered when appeal”). be raised on properly tion raised and decision be- is necessary appropriate to the dis- comes Wicklund, See, e.g., 520 U.S. Lambert v. posal case and statute should 1169, 292, L.Ed.2d 464 117 S.Ct. consid- overruled without careful and mature eration”)- perform filed (1997)(physicians abortions who challenging declaratory judgment action statute); Cen- Planned Parenthood Montana Votteler, See Sax 648 S.W.2d Danforth, 428 U.S. tral Missouri v. (Tex. 1983). (1976)(physicians L.Ed.2d 788 S.Ct. Scott, statute). 38. See State challenging Missouri 1970). (Tex. application eluded as Doe’s been is if aby preponder- had the court determines opin- filed the next day business after our ance of the evidence that notification would ion requires issues. the event that Doe be in the best of the minor. interest opin- additional time after issuance of this See id. ion prepare hearing, may for a If a court concludes that “notification an
request extension of time.41 interest,” be in best the minor’s by is directed section 33.003® concurring Justice OWEN filed a the minor to an proceed authorize with opinion. Id. under “best inquiry abortion. The Justice HECHT filed a dissenting provision simply interest” is not whether opinion, joined. which Justice ABBOTT a parent that minor notifying preg- is seeking nant is an abortion would be OWEN, concurring. Justice in the minor’s The inquiry best interest. The Court failed give effect to the proceeding whether with Legislature’s intent regarding the “best without of a parent notification is in the 83.003(i) prong of interest” section Thus, minor’s best interest. there neces- Family Code when seek have an minors sarily two are interrelated considerations abortion. any The Court has omitted re- (1) within the “best interest” provision: quirement that a trial court find an abor- whether an abortion is minor’s tion to be the best interest of the minor. (2) interest and whether of a Family Code plainly directs a parent that the minor proceeding trial court should not authorize an imma- an abortion would not be in the minor’s ture insufficiently-informed minor to best interest. proceed with an abortion unless the court This is the reasonable construction finds from a preponderance of evi- A “best determina- interest” 33.003®. dence abortion is in the best inter- tion dispositive will not be unless the court est of the minor and that notification of a has concluded that the minor is not mature parent would not be in the best interest of sufficiently well informed make the minor. I disagree also with the stan- decision to have an noti- abortion without dard by of review chosen the Court for fying a and the parent unpersuad- “best interest” determinations. Accord- parent may ed that notifying lead to join ingly, I in the judgment, Court’s but I sexual, physical, emotional abuse of join only Part opinion. VII Surely minor. did in- proceed tend for with an a minor to abor- tion aspect under “best interest” provides phy- Code that no section 33.003 when there has been no sician in the state of Texas perform determination parent, informed *8 an abortion on a minor unless he or she court, or the minor herself that the abor- gives at least 48 hours notice to one of the tion inis her best interest. guardian. minor’s or to her See (b). 33.002(a)(1), § interpretation There The Court’s the “best Tex. Fam.Code are limited exceptions prohibition, to this prong interest” of section defi- 33.003 is judicial and those exceptions by- include cient only because focuses “notifica- 33.002(a)(2)- pass §§ provisions. See id. tion.” The Court does inform trial not (3), 33.003, Legislature 33.004. The that they that can conclude set forth three bases on which a trial court “notification would not be in the best inter- can authorize a minor to an est of minor” to consent also conclude that abortion without of an notification of either abortion would the best be interest guardian. § or her One of these minor. See Tex. Fam.Code 33.003(h). 41. See Tex. Fam.Code
286
Instead,
has considered
says
Supreme
a trial court States
the Court
that
weigh
advantages
provisions
virtually
and disad-
are
“should
“best interest”
parental notification.”
19
vantages of
in the Texas Fami-
to those found
identical
282. None of the factors set
S.W.3d at
ly
bypass
See Lambert
provisions.
Code
with
by the Court seem concerned
forth
295,
Wicklund,
292,
520
117 S.Ct.
U.S.
notification is
whether an
abortion
(1997);
1169,
v. Ak-
464
Ohio
137 L.Ed.2d
in the minor’s best interest.
Health,
502,
497
Reprod.
Ctr.
U.S.
ron
2972,
511-13,
a
288 V (Tex. Co., 686, 690
thon 767 S.W.2d Oil 1989). First, the must be examined record that of discre- The Court holds an abuse supports that the factfinder’s for evidence applied tion should be review- standard party bur failure to find the “best inter- ing determinations under Second, if is proof. den of See id. there of section prong est” “re- determining interest to make reasons that best evidence to the failure support no possi- quires balance then, “the entire record must be finding, minor,” to the ble benefits detriments contrary proposition if the examined to see contexts, family law and that in “other Id. established as a matter law.” is custody, adoption, sup- child such as support is that There evidence would is an discretion standard port,” abuse of to find trial court’s failure that (authorities 281 applied. 19 S.W.3d at parents would not be of one Jane Doe’s omitted). did And Jane Doe interest. acknowledges paren The Court law that notifica- not establish as matter of cases, of appeals our courts tal-termination parents
tion one of her would be sufficiency. legal and applied factual obtaining an her best interest or abor- has at 281. Indeed this S.W.3d if best interest. Even tion would be cases in termination applied that standard ap- an of discretion standard were abuse of the in which the best interest child such that the factual record is not plied, Adams, v. Holley issue. See S.W.2d trial court reach but one conclu- could (Tex.1976) 367, 370-71, (applying Inc., 985 Epic Holdings, In re sion. See in a termi standard of review no evidence (Tex.1998) 41, (explicating S.W.2d 56-57 holding case and parental-rights nation standard). the abuse discretion termi there was no evidence parental rights was
nation of mother’s child); also the best interest see IV Green, 497, 501- v. 677 S.W.2d Richardson to the pertains The evidence that third (Tex.1984) evidence (applying the no 33.003(i),which is “wheth- prong of section review in a termination standard of sexual, may physical, lead to M.D.S., er notification case); In re parental-rights minor,” (Tex. been emotional abuse of the 190, App. 199-201 S.W.3d — Amarillo R.D., of “best (same); in the discussion 1999, set forth above no In re pet.) that her 364, (Tex.App. interest.” Doe’s statement nton Jane 368-69 —SanA denied) (same); establish slapped pet. father had does not Edwards io Regulatory may be Protective & physi- Depart, as a matter of law that she Texas Servs., noti- 946 S.W.2d cally of her abused one 138-39 (Tex.App.—El writ) (same); Dupree no Paso obtain proceeding fied that she is Regulatory Depart, Protective & Texas explain when abortion. Doe did Jane (Tex. Servs., 81, 83, 86-87 907 S.W.2d occurred, severity, slapping incident writ) (same); re In App. it. surrounding any of the circumstances — Dallas (Tex. A.D.E., 241, 245-46 Moreover, only requires Code writ) 1994, no App. Corpus Christi parent. trial court was notice to one — (same). Doe’s that Jane required assume be her mother would father rather than of whether notifica- The determination dis- under an abuse of Similarly, notified. of a interest tion not be the best standard, is not such parental-termi- the evidence analogous cretion is more minor the trial court custody than to decisions. that the conclusion nation cases cases, how generally be are custody was that Jane Doe the issues could reach responsibilities for child rights and if one of her various physically abused allocated rearing are support notified. *11 33.003(i), between the two The trial court’s it “shall enter an order section irrevocable, decision is not court minor to the authorizing the to consent continuing jurisdiction. performance That is not of notifi the abortion without 33.003(i); parental-termination the case in either or § cation.” Tex. Fam.Code see parental-notification Doe, matters. also In re Jane S.W.3d I). (Tex.2000) (Jane court trial custody matters, But at even least has no discretion in the matter. The Fam of appeals applied two courts requires ily further a trial court Code legal sufficiency and factual of standard make its on a prepon determination based In Rodriguez, review. See re 940 S.W.2d evidence, derance of the which is a more- 265, 270, 271-74 (Tex.App. Antonio — San likely-than-not proof requirement. That is denied); writ R.S. v. R.J.J. discretionary “equita or different from 711, 714, 720 (Tex.App. S.W.2d — Dallas just” ble and determination. writ). cases, In rights those biological parents of the children’s had not requires Section 33.003 also trial courts terminated, been but the trial nev courts findings to issue written of fact and conclu- appointed ertheless non-parents manag as at sions law the close of what is a final ing conservators. the merits. See Tex. Fam.Code 33.003(h). § Proceedings under section This Family Court’s treatment of the differently 33.003 should be treated no dealing Code sections with the “best inter- any than other trial. The trial aspect est” bench termination in- findings court’s on ap- consistent with its treatment of should be reviewed the “best aspect peal legal sufficiency. interest” and factual section In review, applying a standard this Court matter, practical virtually As it makes separated has not inqui- “best interest” no difference this Court whether we ry parental-termi- Code’s un review “best interest” determinations provisions nation from the other enumerat- 33.003(i) der section based on abuse of inquiries. Compare ed Tex. Fam.Code sufficiency. legal discretion or If there is § (regarding 161.001 termination of the support some evidence to the trial court’s parent-child relationship) with id. determination, stand, we must let as 33.003(i) § (regarding authorization of mi- correctly law long applied as the nors to obtain abortion without notifica- the facts found trial court. How parent guardian). tion of a I find it ever, there is a material difference anomalous that is doing the Court so with appeals. courts of Under an abuse of dis parental-notification bypass provisions. standard, appeals cretion do remanding statute itself should be the if option touch have the case stone in deciding which supported by standard of review trial court’s decision was should apply. great Section 33.003 distin against some evidence but was guishable from weight preponderance statutes under which a trial evidence. not, may may discretion, court appellate may attempt An particular make an disputed award or reach a con factual reconcile matters under example, Declaratory clusion. For abuse of discretion standard. See re Judgment provides Holdings, Act that a trial Epic 985 S.W.2d 56-57. Un “may” standard, attorney’s “reviewing award fees if it deter der that court must “equitable mines that do so would be of fac defer court’s resolution just.” issues, aside tual not set Tex. Civ. & Prac. Rem.Code 37.009; Bocquet Herring, see also finding court’s unless the record makes it 19, 20-21 The matter clear that the trial court could reach left to the (citing sound discretion of the trial one decision.” Id. at 56 Walker (Tex. contrast, By Packer, court. a trial court makes 839-40 1992)). possible one the three findings under *12 Coker, (Tex.1989); 398, 400 or v. 765 S.W.2d expressly
Section 33.003 does Founders, v. Mar- implicitly foreclose a remand a see also Phoenix Inc. even shall, insufficiency. In appeals for factual 887 S.W.2d appeals is indication that under time constraints very There view short ap- 33.003 differ from traditional proceedings section section 33.003 within which in peals appeals complex layer which the courts would and the must be conducted add, to a trial court’s authority reverse conflicts and waiver issues could the “best imprudent appoint determination under interest” I for courts to think it 83.003(i) and to remand and ad prong attorney section as the same individual to trial court if the the matter litem. great against failure to find is
court’s
weight preponderance of the evidence. insufficiency
Remanding for factual will not previously Because delay by- unduly unconstitutionally aspect of the “best interest” addressed pass proceedings. 33.003(f), hearing and because the
section conducted in this case was before VI Doe, in In its re Jane opinion Court issued Finally, say I more than the (Tex.2000) addressing “ma- 19 S.W.3d potential Court has said about conflicts informed,” I sufficiently ture well bypass proceedings under sec- interest judgments vacate the agree that it should attorney appointed by 33.003. The tion to the trial of the courts below and remand represent court to Jane for further inter- proceedings ad appointed guardian also as litem. Shotwell, justice. est of See Morrow hearing, beginning At the attor- (Tex.1972); see 541-42 ad ney/guardian litem advised her that 60.2(f) (providing that Tex.R.App. also P. conflict could arise because obli- may “vacate the lower court’s this Court obligation gation represent her and the further judgment and the case for remand assist the court. Doe’s attor- Jane in the changes proceedings light of her if ney/guardian ad litem then asked Tex.R.App. law”); (providing that P. 60.3 proceed, wished to nevertheless justice, “may, in the interest of our Court I the Court that yes. agree she said even if a case to the trial court remand the that an actual the record does not reveal judgment appro- is otherwise rendition of But the trial court conflict materialized. Liebman, priate”). But see Scott person not have the same appointed should (Tex.1966) (stating serve dual roles. Rule of Proce- under former Texas Civil allows recognize I that the Code have the 505, this dure Court did person appoint trial court same judg- errorless to reverse an discretion guardian attorney and the ad both jus- remand the interest ment and for a litem minor. See Tex. Fam.Code tice). 33.003(e). situations, many an But represent judgment in the attorney zealously Accordingly, join cannot opinion. Court, Part of its simultaneously discharge the ad the but VII client and obligations to the court. Once an litem’s litem has conferred with a minor and ad HECHT, joined by Justice Justice ad litem apparent, becomes new conflict ABBOTT, dissenting. the minor appointed,
will have to be
unless
assault
apace in its
The Court advances
the conflict. That
can
does waive
fundamental,
rights of
constitutional
conclusively pre-
on the
counsel will be
because
that the
parents and families
had access to the minor’s
sumed to have
Parental
attempted
protect
with the
Texas Nat’l Bank
See NCNB
confidences.
first week,
Notification Act.1 Last
junior high
the household which the
2 opinion
re Doe
has de- high
to unsus-
daughter
school
announces
—-which
rename In re Doe
cided
because it
pecting parents,
upsetting anyone,
if the
going
looks as
Court is
to be revers-
pregnant
getting
that she
abor-
lower
applications
courts’ denials of
parents may
tion.
Catatonic
told
regularly enough that
know
no one will
abortion,
having
daughter
their
*13
which Doe is which
if
opinions
the
are not
says;
spares
Court
the Act
all others
sequential
by
differentiated
Arabic numer-
Also,
Court,
according
any
shock.
to the
require-
als—the Court held that the Act’s
parent
that a
struck a
evidence
has ever
“sufficiently
ment
that a minor be
well
anger
discipline,
child—whether
or
informed” to have an
tell-
abortion without
years
recently,
ago
once
or more
it makes
parents
ing
only
means
that
she
that
prove
par-
no difference —tends to
received minimal
information about
ent
if
may
daughter
abuse the
told that
Any competent lawyer
decision.3
can lead
an
she wants
Parents
abortion.
a reasonably
through
coherent minor
by spanking your daughter
any
warned:
at
simple
Court’s
checklist. minor is “ma-
fife,
point
you may
any
in her
surrender
ture”,
part
require-
other
of the Act’s
right you have to know that she will have
ment,
impulsive
given
if she is not
and has
an abortion before
is 18.
thought
some
to the information she has
But
than the
even less defensible
received.4 The Act’s bar to
abor-
teenage
statutory
tions
Court’s devaluation of the
parental
without
is set
stan-
involvement
Court,
ankle-high,
an
according
obtaining
to the
and dards for
abortion
is,
any minor who can
it
hurdle
as a matter
de-
involvement is the Court’s
law,
Act,
entitled to have her application mand, unsupported by the
that trial
granted. This anemic law is all
Court
to
findings
support
courts make detailed
says
the Legislature
after
conceived
applications.
denying
requires
The Act
months of
to
healthy
labor
deliver a
stat-
trial courts to make
of fact and
findings
ute. Before
Act a minor
only
needed
conclusions
law in connection with their
willing clinician to obtain an
with-
abortion
rulings,6
strongly suggests
but
it
notification;
out parental
now a minor
findings
statutory
those
track the
stan-
only State-paid attorney.
needs
granting
denying applica-
dards for
That,
position
tions.7 And that was the
Doe 1.
say,
Ias
This week
ago
Court
less than
months
along comes Doe which holds that the
took
three
when it
for the trial
promulgated forms
Act’s best-interest and abuse standards
use.8
now
out
courts to
But
turns
higher
are no
than the
suffi-
“mature and
tracking
statutory
ciently well
standards
informed” standard construed
in Doe 1.
easy,
view,
makes it
in the
for
too
Court’s
applied
What does the Act
by requiring
deny applications,
mean
to
that it be
a minor’s
requires that
best interest not to tell her
trial courts work harder.
she intends to have an
Accord- Not
must trial courts
explain
abortion?
detail
Court,
really
why
to the
more than that
they
consider minor immature
potentially
why involving
notification be
to
upsetting
would not be
interest,
minor or
parents.5
Imagine
Indeed.
her best
time in the
first
Ante,
§§
statutory
1. Tex. Fam.Code
33.001-.011.
257.
All
references are to the
Code unless oth-
erwise noted.
33.003(h).
§
6. Tex. Fam.Code
2.
history jurisprudence, Texas so tell, to or emo- physical lead that trial courts can insists tional of me. abuse why in detail choose disbe- explain testimony. any part lieve all of a minor’s reasons, by a proved Any one of these spe- requires sometimes evidence, a basis preponderance findings, Specific this Act. cific but an a minor to consent authorizing invention findings are Court’s her parents.10 notice to abortion without plain intent Legislature’s thwart statute,11 the trial court by required As parental participation in encourage Doe, attorney represent appointed whether to have abor- child’s decision statute,12 the court permitted by as tion, discourage teenage pregnancy guard- attorney to be Doe’s appointed abortion. court then con- ian ad litem well. The Doe, *14 her hearing attended ducted a contemplates higher standard The Act a attorney a friend. guardian, and depriving sets for than the Court testimony, following summary of Doe’s daugh- minor right of their to counsel their hearing. at the evidence offered denying daughter the benefit ter —and concerning of that what Unit- counsel— in a rela- involved sexual Doe has been ed has called the Supreme States tionship time. Doe did not state for some to have “grave and indelible”9 decision he is age her or whether partner’s Legislature gave abortion. has taken explained that she school. She deciding greater discretion becoming from keep control to pills birth require parental whether to they might not pregnant. She knew I the Court therefore remain than allows. but, as she told completely effective court, dissent. possibility that accept “chose responsibility”. period, she tested Doe missed her I When that she to confirm times herself several Doe, at home with age lives Jane a phy- did not consult pregnant. She junior high parents. both She is a period, a second sician. After missed she typical extracurricu- school and involved facilities” many different “spoke[] she not lar activities. The record does reflect also dis- perform has abortions. She she has standing whether academic friends, one two her situation with cussed au- job. applied She ever had has Doe has known a much older adult whom telling without thority to have an abortion life, has known and one whom she all her application, made on In her years. agree Both that abor- only a few 2.1(c)(1) permitted 2A as Rule Form words, way”, and tion, in “is the best Doe’s Rules, she Notification the Parental Doe has told help her. they intend claims: including, pregnant, else that she is one decide to have enough I am mature of the child. presumably, the father my par- telling an abortion any medical advised Doe has been ents) enough .... know about also or should not why she either should reason to make this decision. abortion abortion, has been but she also have an poses her. procedure I want an what my ... told risks Telling parent(s) testified: She my is not in best interest. abortion S.Ct, 622, 642, 33.003(e). Baird, § Id. 443 U.S. Bellota (1979) (Bellota II) (plu 61 L.Ed.2d rality opinion). Id. 10. Tex. Fam.Code
Q you So understand .that there she tell her future because spouse might why something they be some medical reason it “it’s should know.” go would be She you recognizes inadvisable stated future through procedure? religious against with this mate might beliefs “I believe but concluded: there’s
A Yes. [i.e., consequences against having it Q you’re ifAnd advised of that be- responsibility my and it’s to take abortion] procedure you fore the done then them.” go through would not with it— telling Doe’s reasons for not A Yes. are, entirety, their follows:
Q that—is correct? Q Why you your do to tell want A Correct. you’re getting mother an abortion? member is a denominational consequences Worried about but has not pastor church consulted her would have towards her health does not wish so. Concerning to do previous years two she’s had abortion, her church’s views Doe testi- problems worrying], [health from fied: “I’ve looked into the religious and Q And what has worrying she been my religion says what on it.... They about? What brought on her condi- it, they don’t promote but don’t— don’t—it’s tion? *15 completely against it.” Doe A Mainly me. thought prohibited she would not be from practicing religion Q her in the Okay. specific future she Any thing about through you? went with an abortion. relationship A The with—I’ve been
Doe stated that she has considered car- in a relationship for and [some time] her rying pregnancy to term keeping she’s—it’s been hard on her. but, baby, explained, she “I think these Q would both have the consequences relationship on both And this is everyone baby’s in my around me father? [i.e., just school and I think that this abor- Yes, A sir. is a better
tion] decision.” Concerning Q Okay. you Why do want to tell adoption, only testimony Doe’s was as fol- your you’re getting father that an abor- lows: tion? A I’ve everything— looked into A I’m He’s scared him. never Q You’ve considered— me, beat he’s hit me. He a—he has possible. just slapped like me and he has a tem- A— know, I per might, he kick me don’t Q —adoption? keep- You’ve considered out of something. the house or baby? give any Doe did not Yes, explanation farther A sir. when, often, about how or under what Doe did.not whether she had consid- state circumstances her hit father had or child, marrying ered father slapped her. whether she had with him what discussed attorney do, then stated, she should I summarized already as have for the court: whether she has even him told that she is pregnant. Doe did not indicate whether Q you that feel this is decision So of any she aware financial assistance you’ve that made after careful and might be available her if she had thoughtful consideration? baby. A think I it’s to the interest. best say plans marrying Doe does think it’s to the best interest of the ones someday and that if she has abortion that it affect. will judicial upon func-
Q you’re your fringement And certain mind you questions have no unanswered tion. your options or about the conse- about provisions making of the statute quences your decision? rulings court in secret violates the No, sir. open court doctrine of the Texas Constitution. respond appears It that Doe intended to affirmatively question. to the last violate fundamental 3. The statutes proceed- testimony, process requiring due
Following Doe’s (2 time ings period such a short expressed Chapter concern that 33 is days) legal safeguards of a unconstitutional, had not that the although Doe herself, ex- hearing impossible. full are For any raised such issue then ruling right subpoena “I’m to make a wit- going ample stated: [i.e., your application opinions deny and declare or seek is expert nesses is unconstitutional....” A court not exer- abrogated. statute] following written find- appropriate court made cise discretion without ings: judicial tools having such available. applicant
1. That
mature and
well
to make
II
sufficiently
informed
per-
the decision to have
In Doe
Court reversed
to either
formed without notification
finding
judgment
any
appeals’
parents.
of her
and remanded the
judgment
error
interest
applicant’s
It is
forgot
The Court
for a new trial.
case
notify
it is
law Texas
virtually
hornbook
that notifica-
3. There
no evidence
court can reverse
reviewing
“[a]
may lead
applicant’s parents
tion of
judgment
when there
error
*16
physical, sexual
emotional
judgment
below.”13
errorless
“[A]n
applicant.
of
abuse
in
of a trial court cannot be reversed
justice
losing
or to
permit
interest of
written conclusions
The Court also stated
former
party to have
trial.”14 As
on
another
its
Chapter
33 is unconstitutional
put
bluntly
it: “At-
Chief Justice Calvert
following
face for the
reasons:
torneys frequently interpret
rules and
[the
1.The
unreasonable two
statute forces
authorizing
supreme
as
court to
cases]
upon
acting
a court in
day deadlines
in
inter-
judgments
reverse trial court
judicial
automatic
in a
function. The
year
justice. Not so.”15 The same
est of
ap-
an
provisions
waiver
which deem
Calvert wrote that statement
Chief Justice
without court
granted
to be
plication
in
opinion
also authored the Court’s
he
takes the discretion
act
action
Shotwell,
appeared
which
Morrow v.
legislature
a
away from court. The
of the court
judgment
II,
reverse
errorless
1 of
violated Article
section
the trial court
appeals
and remand to
by imposing
the Texas Constitution
justice
in the interest of
a new trial
discretionary duty
upon the
its will
wrong
on
case
tried
because the
to decide life
death
never
theory.16 But Morrow has
major
legal
in
in-
resulting
matters
Calvert,
Inc.,
"...
in the Interest
Bryan,
15. Robert W.
Bryan &
730 S.W.2d
13. Davis v.
643,
Justice’’,
291,
(1972)
(Tex.1987)
curiam)
(per
(citing City
4 St.
L.J.
300-301
Mary’s
644
Blackbird,
(Tex.
159
original).
v.
394 S.W.2d
(emphasis
Houston
in
Lane’s, Inc.,
1965),
v.
147 Tex.
and Chevalier
106,
(1948)).
29.
appear happened. as if it never A minor of possible paternal was some evidence ny knowledge must live with the that she abuse, surely possible it is no evidence of from parents perhaps excluded her require Act does not maternal abuse. made significant most decision she before notified, only that one parents that both be may regret adulthood. She come to if Thus, the Court holds be told.31 not, decision, does exclud- but even abusive, should neither parent may one be very from this difficult ing absolutely no basis told. There is be necessarily affects the rela- part her life holding anywhere in the statute. tionship. long-term consequence court was I would hold that relationship signifi- the familial is far more concluding that Doe offered correct determining cant minor’s best interest possible evidence abuse. parents’ than the that her imme- likelihood disappointment will diate reactions be Ill anger. A interest even minor’s difficult for trial courts it more To make predict, but it must be difficult to define or under the Parental deny applications than the by deeper informed sensitivities Act, spe the Court insists Notification employs. factors of fact and conclusions findings cific in the stat requirement This is not made. C ute, only that trial which states fact and that Doe offered some findings The Court holds “shall issue written telling about her of law”.32 The evidence conclusions courts to make require have an abortion lead to decision to knows how example, section findings. That For physical specific or emotional abuse. requires Code entirely following consists 161.002 of evidence findings” concern “specific testimony court to make three sentences of Doe’s con- and serve to locate him. a mother’s efforts cerning her father: “I’m scared of pa his biological father before me, has her child’s he’s hit me. He He’s never beat A trial terminated. rights can be has rental just slapped has like me he a—he support a child know, kick that denies relief I don’t temper might, and he explain reasons must something.” proceeding review me out of the house or court can A trial “specific findings”.33 slapped hit or her father say did not when who jurisdiction over child retain her, years before. recently whether Department care of the been many how occasions say does not She 33.003(h). 33.002(a)(1)(A) (stating § § 32. Tex. Fam.Code 31. Tex. Fam.Code physician may perform that a without, among things, no- other for a minor Id. 233.027. 33.003(a) (allowing a parent”); § tice to "a apply authorization to have minor to of her to one abortion "without notification parents”). *20 Protective Regulatory if it application granted.” Services took to have her I “specific findings” regarding makes am findings no more clear on what on grounds well-informed, for the order.34 The maturity, Parental No and abuse must imposes Act tification no such require contain. If a trial court determines that a ment; entirely it is invention of Court minor’s demeanor immaturity reflects an approve deny does not of trial apparent questions, courts’ in her answers ing applications. say? what the court If a trial does appear concludes that a minor does not The goes require Court even so far as to given careful thought her decision trial courts to make findings regarding though says even she has and is able credibility. minor’s I am not aware that information, to recite a modicum of requirement such a has ever been imposed finding? the trial court make that it Will any other area of jurisprudence. Texas specific enough? It ordinarily province of the finder of determine, fact to explanation, without courts, guidance Without to the trial credibility of witnesses. Must a court or steady Court ensures a flow of these cases jury explain why it chose to disbelieve onto its docket. any
witness in proceeding? other Of Only course not. in parental notification IV proceedings does the impose I Although share the trial court’s con- unique Court, requirement. cerns about constitutional problems with course, authority cites no for the require- Act, portions of the Parental Notification I ment. agree with the Court that the trial court Less than three months ago the Court holding erred in Act unconstitutional promulgated Form 2D attached to the Pa- However, on its own initiative. yet Rules, 2.5(a) rental Notification which Rule unchallenged secret nature proceed- expressly permits trial courts to in ings use very troublesome. The Court has making rulings. their The form allows a now construed Act twice without more trial court any to check basis found for than a pages briefing hurriedly few granting application and to add com- by faxed to us attorneys. minors’ ments; it require does not findings for Court input Attorney has had no from the denying application. At the time General or others passage involved issued the rules and it forms of the Act. The Court doing what thought nothing required. more was But would not even consider in any other con- now that trial are actually denying text: construing a statute briefing without applications, the Court insists more de- argument, thoroughly re- tails. searching legislative history, and with- out affording parties interested to com- It is not at all clear what details the ment as amicus curiae. While I see no calling Court is for. What do findings on immediate solution problems, to these credibility like, look since have never think prove the Court will ill-served been made before? something Will like having made its decisions in a vacuum. squirmed do: “Doe in her chair. She seemed ill at ease. eyes Her shifted sev-
eral times at points critical in her testimo- ny. She seemed evasive.” Is that becoming what It is apparent, fast now with the Court means? How “By about: 1Doe and Doe that this Court does not youthful demeanor she did not seem to intend to allow trial courts much discretion really understand gravity of the situa- in denying applications under the Parental tion. She seemed willing say what it Act. yet Notification The Court has Id. 263.402. *21 3.3(e)(2)(A) purposes of the Act ion as Rule permitted
mention or how its appealed Notification Rules. Doe emerging further them. Parental decisions time, second and we re- in Texas will to this Court a truth is minors obtain p.m. 7:00 without notice to their ceived record about abortions Now, to, forty-eight them than as the Court wants not March less often later, request by for has said should. hours without when consideration, without bene- expedited and appeals’ opinion, fit of court of this of the case adjudicates merits holds, explanation, and no word of with wrong as a courts are both the lower law, entitled and that Doe is to matter of telling her an abortion without action hasty From and ill-considered re Jane DOE dissent. No. 00-0224. Texas.
Supreme Court of 10, 2000.
March
ORDER judgment of the
The Court reverses appeals renders judgment court of In re Jane DOE opinion(s) fol- to
granting application, No. 00-0193. low. Supreme Court of Texas. Dissenting opinion by Justice HECHT March his to the issuance of an noting dissent opinion(s) with to follow. order PHILLIPS and
Chief Justice Justice to the note their dissent issuance OWEN PER CURIAM. opinion(s) of an order follow. Doe, minor, applied Jane con- her to authorizing an order ABBOTT notes his dissent. Justice either notifying sent an abortion without HECHT, dissenting from the Justice 33.003 pursuant to section opinions of an Order with issuance denied Code. The trial court follow. appeals court of application, judgment. appli- affirmed The trial court denied Jane Doe’s Justice Chief Owen, Phillips, Hecht, authorization to have cation for Jus- Justice Justice tice Abbot and Justice telling parents, and the court Gonzales hold did not as a matter opinion. This that Doe establish appeals affirmed without mature sufficiently of law that she reversed and remanded case Doe, make the decision well informed to In re hearing. a further either notification of an abortion without The trial court immediate- not establish parents, she did hearing again ly conducted second law as a issuing spe- matter application, Doe’s more denied sexual, or emotional lead her physical, Court directed. findings as this cific hearing in affirmed, abuse. Because appeals court of Again the day business on the second court occurred indicating opin- that it would issue an time