A panel of the state Court of Appeals has granted a pregnant 17-year-old’s request to have an abortion without telling a parent, on the ground that the juvenile court judge who heard her initial plea didn’t act quickly enough on the case.
The Jan. 18 decision was made under a state law that requires minors seeking an abortion to notify a parent or go to court. The three-judge panel based its decision in the teen’s favor on a provision in the statute that says a juvenile court judge hearing a minor’s request for a waiver must rule on the case within 24 hours of holding a hearing or the request is considered granted. In the case before the court, the juvenile court judge held a hearing on a Friday but waited until the following Monday to deny the teen’s request.
The decision is notable not only for the new guidance it provides on the 24-hour rule but also because it is a rare published appellate decision on the parental notification statute. The court appears to have published an opinion in a parental notification case only once before, in a 1999 case in which a three-judge panel upheld the denial of a teenage girl’s request for a waiver.
Since then, the court has done little to set precedent on how juvenile court judges are to handle the merits of what are undoubtedly delicate, weighty matters. Last summer, the court issued a decision that addressed what factors juvenile court judges should consider in deciding parental notification cases, but the decision lacked the full force of precedent for two reasons: The decision was unpublished, and the three judges on the panel were not unanimous in why the teen in that case should be granted a waiver.
In the Jan. 18 case, Chief Judge John Ellington’s opinion also touched on the standards judges should employ in considering parental notification cases, finding the juvenile court judge used too high of an evidentiary standard. But because Judge Elizabeth “Lisa” Branch didn’t join that part of Ellington’s opinion, only the part of the court’s ruling addressing the 24-hour rule is precedent.
Georgia law generally prohibits an abortion for an unemancipated minor under the age of 18, unless her parents have been notified. Notice can be accomplished in one of three ways: by a parent or guardian accompanying the minor to the abortion facility and acknowledging having been notified of the procedure; a doctor giving the parent or guardian 24 hours’ notice in person or by telephone; or a doctor giving written notice to the parent or guardian by certified mail.
If she doesn’t wish to let a parent know about her plans, the minor can seek a waiver from a juvenile court judge by showing one of two things: that she is mature and well-informed enough to choose an abortion in consultation with her doctor, or that giving notice to a parent or guardian would not be in the girl’s best interests, such as the likelihood she would suffer abuse if her parents found out about her pregnancy.
If she is denied the waiver, the law allows the girl to appeal to the Court of Appeals. If the girl loses her appeal, she may ask the Georgia Supreme Court to consider the matter.
Special confidentiality rules apply to parental notification cases, and the Jan. 18 opinion refers to the minor who brought the case as “Jane Doe.” When last summer’s parental notification case was decided, information about the case, such as the location of the juvenile court that handled the matter and the name of the judge, was available on the docketing system on the court’s public website. But by this week neither that case nor the one decided last week was included in that public docket, and a note on the docket now explains that “Emergency Motions” aren’t included.
Ellington’s opinion gives almost no details about the teenager requesting the waiver, a result likely because the decision turned on the 24-hour rule and not factors such as her maturity. The lawyer who represented her, R. Thomas Tebeau III of Columbus, declined to comment on the matter.
Georgia’s parental notification law contains specific rules clearly designed to expedite such matters. O.C.G.A. § 15-11-113 says that when a minor files a petition for a waiver, the juvenile court must hold a hearing “within three days of the date of filing, excluding Saturdays, Sundays, and holidays.” O.C.G.A. § 15-11-114(d) says the juvenile court “shall render its decision within 24 hours of the conclusion of the hearing.” Otherwise, says that provision, “the petition shall be deemed granted.”
According to Ellington’s Jan. 18 opinion, the teenager filed her petition for a waiver with the juvenile court on Jan. 2, and a juvenile court judge conducted a hearing on Jan. 4, a Friday. The following Monday, the juvenile court issued an order denying the girl’s petition.
At the appeals court
She appealed, arguing both that the judge’s order wasn’t supported by the evidence and that her petition should be considered granted because the judge didn’t issue a decision within 24 hours of the hearing. The case was assigned to Ellington (who was part of the panel that upheld the denial of a waiver in 1999), Branch and Judge Herbert Phipps.
Ellington wrote that it wasn’t necessary to reach the merits of the case because the juvenile court clearly had violated the 24-hour rule. “Although the January 4, 2013 hearing was conducted on a Friday, the statute includes no provision allowing the court to delay its ruling on the petition beyond 24 hours in order to accommodate an intervening weekend or holiday,” wrote Ellington. “The statute does not use vague language to describe the applicable time period, such as ‘one day’ or ‘by the end of the next business day’; instead, it specifically states ‘within 24 hours of the conclusion of the hearing.’”
Ellington contrasted that language with that of the provision setting a deadline for holding such a hearing, suggesting that if the Legislature had intended to exclude Saturdays, Sundays and holidays from the time given for deciding the matters, the Legislature could have used explicit language to that effect. He said the appeals panel’s conclusion was consistent with language elsewhere in the statute emphasizing that parental notification matters are to be given priority in order to ensure that they are decided as quickly as possible.
Phipps and Branch joined that part of Ellington’s opinion and thus agreed the teen was entitled to a waiver. Ellington’s opinion directed the clerk of the juvenile court to issue the teen a waiver as soon as the case came back to it.
But Ellington’s opinion contained additional discussion joined by Phipps but not Branch. In that section, Ellington wrote that the juvenile court judge also had erred by requiring the teen to make her case by “clear and convincing” evidence, rather than by the lesser “preponderance of the evidence” standard.
“The Act imposes no such burden of proof,” wrote Ellington. He added that there are not any opposing litigants whose interests must be weighed in a parental notification case, and the juvenile court was not charged with balancing greater societal interests.
“The issue before the court is not whether the petitioner should have an abortion or whether her doctors gave her competent advice, and the court is not asked to weigh the societal interests at stake concerning the propriety, legality, or morality of abortions generally,” wrote Ellington. “Rather, the issues are much narrower and concern either the petitioner’s ability to make a decision to have an abortion independently of her parents or whether it is in the best interest of the petitioner to make that decision without the knowledge of her parents or legal guardians.”
Branch’s one-paragraph concurrence said she wasn’t joining that part of the opinion because the teen hadn’t listed any problem with the burden of proof applied by the juvenile court judge as a basis for her appeal.
A practice guide for parental notification cases found on the website of the Georgia Association of Counsel for Children suggests that Ellington’s statement on the standard of proof is news to the legal community. The guide says the standard of proof for abortion notification waiver hearings is clear and convincing evidence.
Savannah attorney Mary Hermann, who used to work at the DeKalb Child Advocacy Center and whose name is on that practice guide, said Thursday that clear and convincing evidence is the usual standard for juvenile court matters. “That’s what everyone was thinking,” she said.
The case is In re Jane Doe, No. A13A0963.