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The Texas Supreme Court on April 29 waived the requirement that a pregnant minor’s parents be told before she has an abortion because the trial court didn’t issue written findings on her allegations that notification could cause her to be abused. The decision in In Re Jane Doe 10 marked only the second time since the parental notification law took effect in 2000 that the high court has reversed a lower court’s denial of a judicial bypass. The identity of the girl who requested the bypass and the trial and appeals courts that denied her request are kept confidential by law. “Because the trial court failed to issue findings of fact or conclusions of law on the question of whether notification may lead to physical, sexual or emotional abuse of the minor, we must deem a finding in Doe’s favor if there is some evidence in the record that notification may lead to any of these types of abuses,” Justice Xavier Rodriguez wrote for the majority. Seven justices joined Rodriguez in the opinion. Under Texas Family Code � 33.002(a), a physician may not perform an abortion on a girl younger than 18 unless the physician gives 48 hours’ notice to one of her parents or a legal guardian. The potential that a girl will be abused is one of three possible grounds for a judge to bypass that notification requirement. The bypass also may be granted if the judge finds the girl is mature and sufficiently well informed to make a decision to have an abortion or that notifying a parent would not be in her best interests. Rodriguez said in the opinion that the trial judge wrote the word “No” next to two questions but left blank the space next to the question about abuse. Susan Hays, president of the Jane’s Due Process board of directors, says she is “heartened” to see the court write on the abuse issue. “I’m glad to see they thought the issue is important enough to have findings of fact and conclusions of law,” she says. Hays, an associate with Dallas’ Akin, Gump, Strauss, Hauer & Feld, says JDP’s annual report, released in February, indicated about one-third of the minors who seek the statewide nonprofit group’s help report experiencing some type of abuse by a parent or guardian. FEAR OF ABUSE According to the court’s opinion, the girl testified that her father has a drinking problem and has hit her and her siblings in the past. The girl also testified that her mother would banish her from home if notified that she is pregnant, the opinion said. Justice Nathan Hecht, who dissented in the first four Jane Doe cases in 2000, said in a concurring opinion that there is some evidence that the girl’s father might physically abuse her. The girl’s testimony that her mother might be emotionally abusive is “somewhat equivocal,” Hecht wrote. But Hecht said in the opinion that the testimony, “as ambiguous as it is,” is enough for the judicial bypass to be granted in the absence of a finding by the trial court to the contrary. The Texas Supreme Court — not the Legislature — has established the law in parental notification proceedings, Hecht said in the opinion. “I did not agree with the judicial rewriting of the statute, but it is now quite clearly the law, and ‘in the area of statutory construction,’ as both this court and the United States Supreme Court have recognized, ‘the doctrine of stare decisis has its greatest force,’” he wrote. Collyn Peddie, a Houston attorney who represented a girl granted a judicial bypass in In Re Doe 1 (II), says the Texas Supreme Court, in its latest Doe ruling, is reminding judges “who are getting a little sloppy” of what they have to do in these cases. Peddie, of counsel at Houston-based Beirne, Maynard & Parsons, says a minor has an “automatic right” to appeal when the trial judge denies her application to waive the requirement that one of her parents be notified of her intent to have an abortion. “But if there is nothing to appeal on, it does no good,” she says. Rodriguez wrote that “particularized findings are essential to meaningful appellate review, at least when credibility or maturity concerns are involved.” “It would be very simple for a trial court to do what is asked,” says James Paulsen, a South Texas College of Law professor and civil procedure expert. Paulsen says judges don’t have to have many fact-findings in parental notification proceedings. Findings of fact are required only for the three issues the judge must consider when determining whether a girl should make a decision to have an abortion without notifying a parent, he says. “Maybe what is going on here is the trial judges have gotten out of the habit of doing their own work,” Paulsen says. Judges typically don’t write their own fact-findings, leaving that task to the winning lawyers, he says. But parental notification proceedings are not adversarial. The only party is the girl who is requesting that the notification requirement be waived. Paulsen says it would be considered “very poor form” for a judge who plans to rule against the girl applying for a bypass to tell her lawyer to prepare the findings of fact.

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