In the Interest Of: Jane Doe

• Court: Court of Appeals of Georgia
• Decided: January 18, 2013
• Docket: A13A0963
• Status: Published

Opinion

FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and BRANCH, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

January 18, 2013

In the Court of Appeals of Georgia A13A0963. IN THE INTEREST OF: JANE DOE.

ELLINGTON, Chief Judge.

In this case, a seventeen-year-old girl petitioned a juvenile court under the

Parental Notification Act (“the Act”), OCGA § 15-11-110 et seq., for a waiver of the

parental notification required before an unemancipated minor may have an abortion.

See OCGA §§ 15-11-112 (b); 15-11-114 (c). The juvenile court held a hearing and

thereafter issued an order denying the petition. The appellant filed the instant appeal.1

1 Under the Act, the minor is entitled to an expedited appeal “completely preserving the anonymity of the parties” under rules issued by this Court. OCGA § 15-11-114 (e). See also Court of Appeals Rule 45 (b), (d), (e), (j). Hence the minor will be referred to as “the appellant” or “Jane Doe,” and this case is styled accordingly. Cf. In re: Jane Doe, 262 Ga. 389 (418 SE2d 3) (1992) (using the name “Jane Doe” in a different context involving a terminally ill child). Because we find that the appellant was entitled to a waiver of the notification

requirement for the reasons explained below, we reverse.

Generally, the Act prohibits physicians and other persons from performing

abortions upon unemancipated minors under the age of 18 unless (1) the minor is

accompanied by a lawful parent or guardian who acknowledges having been notified

of the abortion; (2) the physician or the physician’s agent gives 24 hours actual notice

in person or by telephone to a parent or guardian; or (3) the physician or the

physician’s agent gives written notice to a parent or guardian by a specified form of

certified mail. OCGA § 15-11-112 (a) (1). The minor also must sign a consent form.

OCGA § 15-11-112 (a) (2). The minor, however, is authorized to seek a waiver of the

notification requirement from any juvenile court in the state. OCGA § 15-11-112 (b).

No abortion shall be performed without the required notice or a waiver of that

requirement. OCGA § 15-11-112 (c).

Following a hearing, a juvenile court shall waive the notification requirements

of OCGA § 15-11-112 (a) (1) if the court finds either

(1) That the unemancipated minor is mature enough and well enough informed to make the abortion decision in consultation with her physician, independently of the wishes of such minor’s parent or guardian; or

2 (2) That the notice to a parent or, if the minor is subject to guardianship, the legal guardian pursuant to Code Section 15-11-112 would not be in the best interests of the minor.

OCGA § 15-11-114 (c). See also In the Interest of E. H., 240 Ga. App. 91 (524 SE2d

2) (1999). Finally, OCGA § 15-11-114 (d) provides, in part:

The juvenile court shall render its decision within 24 hours of the conclusion of the hearing and a certified copy of same shall be furnished immediately to the minor. If the juvenile court fails to render its decision within 24 hours after the conclusion of the hearing, then the petition shall be deemed granted.[ 2]

In this case, the appellant filed her petition on January 2, 2013, and the court

conducted a hearing on January 4. On January 7, the court issued an order denying

the appellant’s petition.

2 See Uniform Juvenile Court Rule 23.6 (“Upon conclusion of the hearing . . ., the court shall issue a written order stating specific factual findings and legal conclusions supporting its decision. . . . The court shall prepare a certified copy of the order which shall be furnished only to the unemancipated minor, her attorney or next friend within 24 hours of the hearing. In the event that no hearing is held or more than 24 hours have elapsed since the time of the hearing and the court has not entered an order, the unemancipated minor may request the Clerk of Court to issue a certificate indicating such.”); see also Uniform Juvenile Court Rule 3.8 (providing form JUV- 30, the form to be issued when a hearing is held but no decision is rendered within 24 hours).

3 1. On appeal from the court’s order, the appellant challenges the court’s order

on the merits, asserting that it was not supported by the evidence presented. The

appellant also contends the petition should be deemed granted because the court did

not render a decision within 24 hours.

It is unnecessary to reach the merits of this case because the record clearly

shows that the court failed to comply with the statutory mandate that it render its

decision and provide a certified copy of the order to the minor within 24 hours of the

conclusion of the hearing, pursuant to OCGA § 15-11-114 (d). 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. 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.” Id.

In contrast, OCGA § 15-11-113 specifically provides, in relevant part, that

“[t]he hearing [regarding a notification waiver petition] shall be held within three

days of the date of filing [of the petition], excluding Saturdays, Sundays, and

holidays.” (Emphasis supplied.) Thus, with the aid of two well-known and related

4 principles of statutory construction – expressio unius est exclusio alterius (expression

of one thing implies exclusion of another) and expressum facit cessare tacitum (if

some things are expressly mentioned, the inference is stronger that those not

mentioned were intended to be excluded) – we conclude that the General Assembly’s

failure to specifically state that the juvenile court’s 24-hour time period for issuing

an order on the petition excluded Saturdays, Sundays, and holidays, demonstrates its

intention to provide that the 24-hour time period under OCGA § 15-11-114 (d) shall

not be expanded. See, generally, Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d

415) (2004).

Moreover, this conclusion is consistent with the General Assembly’s adoption

of OCGA § 15-11-114 (b), which specifically provides that “[a]ll court proceedings

under this Code section . . . shall be given such precedence over other pending

matters as is necessary to ensure that a decision is reached by the court as

expeditiously as is possible under the circumstances of the case.” (Emphasis

supplied.) See also OCGA §§ 15-11-113; 15-11-114 (d), (e); Court of Appeals Rule

45; Uniform Juvenile Court Rules 23.4.

Accordingly, because the juvenile court failed to issue its order within the

mandatory 24 hour time period, the petition must be deemed granted as a matter of

5 law. OCGA § 15-11-114 (d). Consequently, the court’s subsequent order denying the

petition was void ab initio and must be reversed. Upon remittitur, the clerk of the

juvenile court shall issue instanter a certified Parental Notification Certificate,

pursuant to Uniform Juvenile Court Rule 3.8.

2. We also note that the trial court’s final order required the appellant to

demonstrate that she was entitled to a waiver under the Act by “clear and convincing”

evidence. The Act imposes no such burden of proof. See OCGA § 15-11-114.

Although a petitioner must present evidence in support of the grounds asserted in the

petition, the statute does not require a quantum of proof greater than a preponderance

of the evidence.

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. . . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.

6 (Citations and punctuation omitted.) Santosky v. Kramer, 455 U. S. 745, 754-755 (II)

(102 SC 1388, 71 LE2d 599) (1982). In this case, there are no opposing litigants in

the traditional sense. This is an ex parte procedure by which a juvenile court judge,

in the exercise of his or her discretion, addresses statutory requirements that may be

resolved by examining the petitioner. 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. 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. See OCGA § 15-11-114 (c). Because the juvenile court is not tasked with

balancing any broader societal interests, we find no basis for imposing a heightened

“clear and convincing” standard of proof. Cf., In the Interest of D. W., 300 Ga. App.

438, 441 (1) (685 SE2d 311) (2009) (In termination of parental rights cases, the high

value society places on safeguarding the integrity of the family justifies application

of the clear and convincing standard.) Rather, under these circumstances, we

conclude that the application of a “preponderance of the evidence” standard is

7 appropriate and satisfies the relevant concerns. See, e.g., In the Interest of J. N., 302

Ga. App. 631, 636-637 (2) (691 SE2d 396) (2010) (Where a finding of deprivation

has led to the loss of a parent’s custody, subsequent rulings on that parent’s request

for custody modification are made pursuant to a preponderance of the evidence

standard.).

Judgment reversed. Phipps, P. J., concurs. Branch, J., concurs specially.

8 A13A0963. IN THE INTEREST OF: JANE DOE.

BRANCH, Judge, concurring specially.

I concur fully in Division 1 because the juvenile court failed to render its

decision within 24 hours of the conclusion of the hearing and, therefore, by the clear

language of the statute, the petition “shall be deemed granted.” OCGA § 15-11-114

(d). I cannot join the majority in Division 2, however, because appellant did not

enumerate the juvenile court’s application of an improper standard of proof as error.

For this reason, I concur in judgment only as to Division 2, which cannot be cited as

binding precedent. See Court of Appeals Rule 33 (a).