In re Doe

501 S.W.3d 313

In re Jane Doe, Appellant

NO. 14-16-00555-CV

Court of Appeals of Texas, Houston (14th Dist.).

Concurring Opinions filed September 8, 2016.

Frances M. Northcutt, Houston, TX, for In re Jane Doe.

Panel Consists of Chief Justice Frost and Justices Boyce and Jamison.

OPINION

Martha Hill Jamison, Justice

On July 13, 2016, the trial court issued a judgment denying minor Applicant Jane Doe's request for a court order authorizing her to consent to an abortion without the parental notice and consent required by sections 33.002 and 33.0021 of the Texas Family Code ("judicial bypass"). On July 25, 2016, this court issued a judgment affirming the trial court's denial of the application and stating that an opinion would follow. The reasons for this court's judgment are explained in this opinion, which has been written in a way to preserve the confidentiality of the identity of the minor. See Tex. Fam. Code Ann. § 33.004(c–1).

FACTUAL AND PROCEDURAL BACKGROUND

Applicant filed her application for a judicial bypass on July 7, 2016 pursuant to section 33.003 of the Texas Family Code. She was 17 years old on this date. Applicant asserted both statutory grounds for obtaining a judicial bypass: (1) that she is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of her mother; and (2) that notification and attempt to obtain consent would not be in her best interest.¹ See Tex. Fam. Code § 33.003(i).

Hearings were conducted on the application on July 7, 2016, at which a guardian ad litem was appointed for Applicant, and on July 13, 2016. The court heard testimony from Applicant and her aunt. The guardian ad litem also addressed the court. On July 13, 2016, the trial court signed a judgment that denied the application and found based on the testimony and evidence presented that "Applicant is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of her parent, however, the Court finds the notification and attempt to obtain consent would be in the best interest of the minor." Applicant appealed to this court, arguing that the trial court was required by the statute to grant the application based on its finding that Applicant is mature and sufficiently well informed.

ANALYSIS

A. Overview of Statutory Structure

According to the United States Supreme Court, the State may not impose a blanket provision requiring the consent of a parent as a condition for abortion of an unmarried minor; the State must provide a mechanism to allow for exceptions. See Bellotti v. Baird , 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979). The Texas Legislature enacted such a mechanism in 1999 as Chapter 33 of the Texas Family Code. The Texas Supreme Court construed and applied the statute in eight opinions during 2000 and 2002.²

The Texas Legislature amended Chapter 33 of the Family Code in 2003 and 2015. The 2015 amendments have a particular bearing on this appeal. Among other things, these amendments (1) changed the burden of proof for obtaining a judicial bypass from "preponderance of the evidence" to "clear and convincing evidence," and (2) added section 33.003(i–1), which discusses factors the court may consider in determining whether the minor is mature and sufficiently well informed to obtain a judicial bypass. See Tex. Fam. Code § 33.003(i) and (i–1).

The legislature added Chapter 171 to the Health and Safety Code in 2003. Among other things, this chapter mandates informational materials that must be published by the Texas State Department of Health Services (the Department) and furnished to the minor. See Tex. Health & Safety Code §§ 171.012, 171.014.

The Texas Supreme Court has not issued any opinions construing these statutes in light of these amendments and additions. In 2015, the Texas Supreme Court issued an order amending the Rules and Forms for a Judicial Bypass of Parental Notice and Consent, originally approved in 1999, to address some of these amendments and additions.

B. Applying Section 33.001(i–3) of the Family Code

Section 33.001(i–3) of the Family Code provides:

The court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to and consent of a parent, managing conservator, or guardian and shall execute the required forms if the court finds by clear and convincing evidence, as defined by Section 101.007, that:

(1) the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of a parent, managing conservator, or guardian; or

(2) the notification and attempt to obtain consent would not be in the best interest of the minor.

Tex. Fam. Code § 33.003(i–3) (emphases added).³

Based on the trial court's affirmative finding on subsection (1), its negative finding on subsection (2), and its denial of the application, it appears that the trial court interpreted section 33.001(i–3) to require the minor to prove both subsections (1) and (2) to be entitled to relief. We disagree because the statute's unambiguous terms dictate otherwise. The use of "shall" and "or" in the statute imposes a mandatory duty on the trial court to enter a judicial bypass order if it makes either of the two stated findings. See Tex. Gov't Code § 311.016(2). Thus, if the trial court finds by clear and convincing evidence that the minor is mature and sufficiently well-informed or that notification and attempt to obtain consent would not be in the best interest of the minor, then the court must grant the minor's application. See In re Doe 2 , 19 S.W.3d 278, 289 (Tex.2000) (Owen, J., concurring). "[T]he trial court has no discretion in the matter." Id.

Applicant therefore argues that because the trial court found in its judgment that "[t]he Applicant is mature and sufficiently well informed to make the decision to have an abortion performed without notification to or consent of her parent ...", the trial court was required under section 33.003(i–3)(1) to grant her application for a judicial bypass and erred by denying it. While we agree with Applicant's interpretation of section 33.003(i–3), we conclude that the trial court did not err by denying the application because as discussed below, the evidence is not legally sufficient under a "clear and convincing evidence" standard to support the trial court's finding that Applicant is "sufficiently well informed to make the decision to have an abortion performed without notification to or consent of a parent."⁴

C. Standard of Review for Legal Sufficiency of the Evidence when Clear and Convincing Evidence Is Required

In reviewing the legal sufficiency of the evidence supporting a finding that, as here, must be proven by clear and convincing evidence, "an appellate court must ‘look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.’ " Diamond Shamrock Ref. Co. v. Hall , 168 S.W.3d 164, 170 (Tex.2005) (quoting Sw. Bell Tel. Co. v. Garza , 164 S.W.3d 607, 627 (Tex.2004) ). "In cases requiring clear and convincing evidence, even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." In re K.M.L. , 443 S.W.3d 101, 113 (Tex.2014). "If the reviewing court determines that no reasonable factfinder could form a firm belief or conviction that the matter to be proven is true, then the court must conclude that the evidence is legally insufficient." Id.

D. Requirements for Proving that a Minor is "Sufficiently Well Informed"

In In re Doe , 19 S.W.3d 249 (Tex.2000) (Doe 1 ), the Texas Supreme Court construed the version of section 33.003(i) in effect before the 2015 amendments. There, the court held that the minor must prove three things to establish that she is "sufficiently well informed":

First, she must show that she has obtained information from a healthcare provider about the health risks associated with an abortion and that she understands those risks. That would include an understanding of the risks associated with the particular stage of the minor's pregnancy.

Second, she must show that she understands the alternatives to abortion and their implications. As with any medical procedure, part of making an informed decision is knowing the available alternatives. A minor should be able to demonstrate that she has given thoughtful consideration to her alternatives, including adoption and keeping the child. She should also understand that the law requires the father to assist in the financial support of the child. (citation omitted). She should not be required to justify why she prefers abortion above other options, only that she is fully apprised of her options.

Third, she must show that she is also aware of the emotional and psychological aspects of undergoing an abortion , which can be significant if not severe for some women. She must also show that she has considered how this decision might affect her family relations. Although the minor need not obtain this information from licensed, professional counselors, she must show that she has received information about these risks from reliable and informed sources, so that she is aware of and has considered these aspects of the abortion procedure.

Id. at 256–57 (emphases added). See also In re Doe 4 , 19 S.W.3d 337, 339 (Tex.2000) (restating these three required showings).⁵

Regardless of whether Applicant made the first and second showing in this case, as discussed below, we conclude that Applicant failed to produce clear and convincing evidence on this record that she is aware of the emotional and psychological aspects associated with undergoing an abortion.

Doe 1 was decided in 2000. We must evaluate the potential effect of the 2015 amendments to Chapter 33 of the Family Code and...