IN RE PETITION OF ANONYMOUS 5, A MINOR
No. S-13-510009
Supreme Court of Nebraska
October 4, 2013
286 Neb. 640
___ N.W.2d ___
Abortion: Minors: Physicians and Surgeons. Gеnerally, 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. 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. - 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 thе matters at issue. - ____: ____: ____: ____. 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.
- 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.
- 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.
- Statutes: Appeal and Error. When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result.
- 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. - 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 consent, has either abused her as defined inNeb. Rev. Stat. § 28-351 (Cum. Supp. 2012) or subjected her to child abuse or neglect as defined inNeb. Rev. Stat. § 28-710 (Reissue 2008). - 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 convincing evidence. - Minors: Emancipation. Experience, perspective, and judgment are often lacking in unemancipated minors who are wholly dependent and have never lived away from homе or had any significant employment experience.
- Pleadings. The issues in a case are framed by the pleadings.
- 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 , and71-6904 (Cum. Supp. 2012). - Abortion: Legislature.
Neb. Rev. Stat. § 71-6903 (Cum. Supp. 2012) is a creation of the Legislature and did not exist at common law. Abortion: Courts: Jurisdiction. The district court’s jurisdiction over proceedings pursuant to Neb. Rev. Stat. § 71-6901 et seq. (Cum. Supp. 2012) arises from a legislative grant and is inherently limited by the grant.- ____: ____: ____. 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. - 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. - Legislature: Declaratory Judgments. The Legislature has authorized a declaratory judgment action.
- Constitutional Law: Jurisdiction: Equity. The equity jurisdiction of the district court is granted by the Constitution and cannot be legislatively limited or controlled.
- 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: PETER C. BATAILLON, Judge. Affirmed.
Catherine Mahern for petitioner.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
PER 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 рarents or a legal guardian.1 This proceeding was instituted under the provisions of
BACKGROUND
Petitioner is 16 years old and 10 weeks along in her pregnancy. 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 biological 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 tаking 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 person.” 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
ASSIGNMENTS OF ERROR
Petitioner assigns, reordered, that the district court erred in (1) failing to recuse itself from the case for lack of impartiality, (2) failing to authorize waiver of pаrental consent where there was clear and convincing evidence that there was abuse as defined in
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
ANALYSIS
Before reaching the errors assigned by petitioner, we digress to note that the Legislature recently made significant changes to
RECUSAL
[5] Petitioner contends that the judge’s questioning of her at the end of the proceeding demonstrated a lack of impartiality 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
[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 abortion 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.
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 biological 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
[6] But the biological parents no longer have any legal rights or responsibilities relating to petitioner. A court entered an оrder terminating the parental rights of petitioner’s biological parents in May 2013. There was no appeal from the termination 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 arguеs 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,
[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 interpretation, the court would automatically have to issue an order authorizing the abоrtion 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 interpretation 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
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
“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 pregnant 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 dеtermined by looking “‘for appreciation and understanding of the relative gravity and possible detrimental impact of each available option, as well as realistic perception and assessment of possible 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 maturity, a trial court “‘may draw inferences from the minor’s
[11] As is undoubtedly typical in such cases, the only testimony 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 significant 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 counseling or a medical proсedure. 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].”
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
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 consent 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 notification [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 nоtification 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
[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 оf 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 information 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
[14-17] Because the district court’s jurisdiction of this proceeding arose from a legislative grant, it was inherently limited by thе grant. In Cummins Mgmt. v. Gilroy,27 we recognized 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 jurisdiction with the power to hear and determine other issues.30 Obviously, the subject matter of a proceeding under
[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
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” provision of
AFFIRMED.
CONNOLLY, J., dissenting.
The petitioner has no legal parents; the juvenile court terminated their parental rights. Her legal guardian, the Department—by regulation—will not give her cоnsent. And although the district 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
Except in the case of a medical emergency or except as provided in sections
71-6902.01 ,71-6903 , and71-6906 , 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 . . . .
This leaves only the judicial bypass procedure under
(2) If a pregnant woman elects not to obtain the consent 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 subject 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 mattеr jurisdiction does not turn solely on the court’s
Based on the language of
Whеn 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 caseworker from explicitly giving or withholding consent for an abortion:
A female ward has the right to obtain a legal abortion. 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 agencies and resources for further assistance. The worker will not encourage, discourage, or act to prevent or require the аbortion.
If a ward decides to have an abortion, the consent of the parent(s) or Department is not required . . . .5
The petitioner raised these points at the trial level. The petitioner’s appointed attorney specifically submitted evidence showing that (1) the parents’ parental rights had been terminated; (2) the juvenile court had committed the petitioner to the Department’s custody; (3) the Department had placed her in a foster home under the Department’s supervision; and (4) the Department will not give or withhold consent for an abortion. Given these facts, the court could not conclude that the petitioner had elected not to obtain consent. And unless a сourt makes this finding, there is no predicate upon which the court could exercise its jurisdiction in a judicial 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 temporary 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 derivative of and subject to the custodial authority possessed by the [state] agency.”7 And notiсeably, the Department authorizes foster parents to obtain only routine immunizations and medical 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
But the majority opinion ignores these jurisdictional problems by not addressing the effect of the Department’s regulation 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 notification to a requirement of parental consent. But even if it is effеctive, 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 petitioner 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 reasоns 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
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 rationаle.
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
The Department, however, has abdicated its role in determining these issues. And despite the State’s interest in protecting a minor ward’s well-being, there are at least two reasons (and probably others) that the Department would nonetheless 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 federal 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 problems because they were not raised in the “pleadings.” An
As to the majority opinion’s second reason for not relying 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 relying on the regulаtion, 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 notification 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
Because the petitioner never “elect[ed]” not to get the consent of a parent or a guardian to seek an abortion, the court did not have jurisdiction to entertain her request for judicial bypass under
McCORMACK, J., joins in this dissent.