In re Doe , 2011 Ohio 5482 ( 2011 )

[Cite as In re Doe, 2011-Ohio-5482.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: JANE DOE : APPEAL NO. C-110621
TRIAL NO. AB11-3X
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O P I N I O N.
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Civil Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 6, 2011
Gerhardstein & Branch Co. LPA and Jennifer L. Branch, for Appellant Jane Doe
OHIO FIRST DISTRICT COURT OF APPEALS
DINKELACKER, Presiding Judge.
{¶1} Under R.C. 2505.073, appellant Jane Doe, appeals the judgment of
the Hamilton County Juvenile Court denying her application to have an abortion
without parental consent. We affirm.
{¶2} Doe filed a petition with the juvenile court on September 29, 2011,
seeking an abortion without parental notification and consent. At the hearing, Doe
testified that she was a 17-year-old college student, and was currently a little over 22
weeks pregnant. Doe testified that she had told her mother, who lives in another
state far away from Doe, that she was pregnant. Doe said that she and her mother
had discussed Doe’s options concerning her pregnancy and that her mother had told
her to do what she thought was best. Doe testified that her mother was “okay” with
her having an abortion, but could not afford to come to Ohio to sign the appropriate
medical forms. Doe testified that she did not tell her father because she did not want
to add to his stress; he is in the military and currently deployed overseas.
{¶3} Following the hearing, the juvenile court denied Doe’s petition,
stating that it was moot because Doe had parental consent for the abortion according
to the testimony presented. This appeal followed.
{¶4} We review the juvenile court’s denial of Doe’s petition under an
abuse-of-discretion standard. In re: Doe, 1st Dist. No. C-050133, 2005-Ohio-1559.
“Abuse of discretion” has been defined as an attitude that is unreasonable, arbitrary
or unconscionable. AAAA Ens., Inc. v. River Place Community Urban
Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161, 553 N.E.2d 597.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} In her three assignments of error, which we consider together, Doe
essentially asserts that the trial court erred in denying her petition to have an
abortion without parental consent.
{¶6} Doe argues that the juvenile court acted contrary to law when it
denied her petition as moot after determining that Doe’s mother had consented to
the abortion. But the record reflects that Doe did have her mother’s consent to have
an abortion. Doe testified that she had discussed her pregnancy and her options with
her mother and that her mother supported her having an abortion. While the
evidence presented at the hearing indicated that it would be difficult for Doe’s
mother to come to Ohio to sign the appropriate medical forms formalizing consent, it
would not have been impossible for her to do so.
{¶7} The purpose of Ohio’s parental by-bass statutes is to provide consent,
in appropriate situations, to minors who cannot obtain parental consent. In this
case, as the juvenile court properly found, Doe’s mother had consented to the
abortion. Thus, the reasons for activating the parental-bypass statutes were not
present in this case as there was no lack of parental consent. Because the need for
state-substituted consent was absent here, the petition was in fact moot. But
regardless of whether the petition was moot, the juvenile court sill engaged in the
appropriate analysis under the parental-bypass statutes and properly denied Doe’s
petition.
{¶8} Under R.C. 2919.121(C)(3), a juvenile court shall deny a minor’s
petition to have an abortion without parental consent if the minor is not sufficiently
mature and well enough informed to intelligently decide whether to have an
abortion, and if it is not in the best interests of the minor to have an abortion.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Although the juvenile court here did not specifically find that Doe was
not mature enough to make the decision to have an abortion or that an abortion was
not in her best interests, we can presume regularity in the proceedings below and
thus, that the juvenile court properly considered the appropriate statutory criteria
before denying Doe’s petition. In fact, the record before us included the Hamilton
County Juvenile Court “Form 23.1-B Judgment,” which was signed by the court.
This form contained specific findings that the juvenile court could check. One of the
findings was that “the abortion is in the best interest of the Petitioner and judicial
consent is hereby authorized.” This statement was specifically left unchecked by the
trial judge. Instead, the next finding listed on the form was checked by the trial
judge, which stated that “the petition is denied * * *.”
{¶10} Accordingly, after thoroughly reviewing the record, we cannot say
that the juvenile court abused its discretion in denying Doe’s petition. Thus, the
three assignments of error are overruled, and the juvenile court’s judgment denying
Doe’s petition for an abortion without parental consent is affirmed.
{¶11} If Jane Doe believes that this opinion may disclose her identity, she
has a right to appear and argue at a hearing before this court. She may perfect this
right by filing a motion for a hearing within 14 days of the date of this decision.
{¶12} The clerk is instructed that this decision is not to be made available or
released until (1) 21 days have passed from the date of the decision, and Doe has not
filed a motion for a hearing, or (2) after this court has ruled on a motion for a
hearing, if such a motion is filed.
Judgment affirmed.
SUNDERMANN, J., concurs.
HILDEBRANDT, J., dissents.
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OHIO FIRST DISTRICT COURT OF APPEALS
HILDEBRANDT, J. dissenting.
{¶13} I respectfully dissent.
{¶14} The juvenile court denied Doe’s petition, stating that it was moot
because Doe had parental consent for the abortion according to the testimony
presented. This finding, however, was erroneous. Although Doe may have had her
mother’s verbal consent to have an abortion, Ohio law requires written parental
consent. See R.C. 2919.121(B)(1). There is no dispute that Doe did not have a
parent’s written consent. Accordingly, the petition was not moot.
{¶15} Therefore, the juvenile court should have considered the testimony
and determined, as required by R.C. 2151.85(C), whether there was clear and
convincing evidence that Doe was “sufficiently mature and well enough informed to
decide intelligently whether to have an abortion” or whether it was in Doe’s best
interests to have an abortion. Although the majority believes that the juvenile court
undertook this analysis, I do not because there is no discussion in the transcript or in
the judgment entry discussing these factors and because the juvenile court
specifically stated it was denying the petition as moot because Doe already had
parental consent. Therefore, I would remand this matter to the juvenile court to
engage in the appropriate analysis and make the proper statutory determinations.
Please Note:
The court has recorded its own entry on the date of the release of this opinion.
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