In re Doe

2011 Ohio 5482

• Court: Ohio Court of Appeals
• Decided: October 6, 2011
• Docket: C-110621
• Status: Published

Opinion

[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 :

: O P I N I O N. :

:

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.

2 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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{¶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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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.