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In re Petition of Anonymous 5

Supreme Court of Nebraska

October 4, 2013

In re Petition of Anonymous 5, a minor.

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Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge. Affirmed.

Catherine Mahern, Omaha, for petitioner.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Abortion: Minors: Physicians and Surgeons. Generally, an abortion cannot be performed upon an unemancipated pregnant woman under 18 years of age unless a physician obtains the notarized written consent of both the pregnant woman and one of her parents or a legal guardian.

[286 Neb. 641] 2. Statutes: Appeal and Error. The meaning and interpretation of a statute are questions of law. An appellate court independently reviews questions of law decided by a lower court.

3. Abortion: Minors: Judgments: Appeal and Error. Under Neb.Rev.Stat. § 71-6904(6) (Cum.Supp.2012), the Nebraska Supreme Court hears an appeal from a final order denying authorization for an abortion without the consent of a parent or guardian de novo on the record. Accordingly, the court reappraises the evidence as presented by the record and reaches its own independent conclusions with respect to the matters at issue.

4. Abortion: Minors: Judgments: Appeal and Error. Although the Nebraska Supreme Court's review of a final order denying authorization for an abortion without the consent of a parent or guardian is de novo on the record, the court may consider and give weight to the fact that the judge below heard and observed the witnesses.

5. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial court.

6. Parental Rights: Parent and Child. An order terminating the parent-juvenile relationship shall divest the parent and juvenile of all legal rights, privileges, duties, and obligations with respect to each other.

7. Statutes: Appeal and Error. When possible, an appellate court will try to avoid a statutory construction that would lead to an absurd result.

8. Abortion: Minors: Statutes: Intent. The obvious intent of Neb.Rev.Stat. § 71-6903(3) (Cum.Supp.2012) is to avoid requiring a pregnant woman to obtain the consent of a parent or guardian who has abused or neglected her, acts which evidence an obvious disregard of her best interests or well-being.

9. Abortion: Minors: Pleadings: Proof. Under the " evidence of abuse ... or child abuse or neglect" provision of Neb.Rev.Stat. § 71-6903(3) (Cum.Supp.2012), the pregnant woman must establish that a parent or guardian, who occupies that role in relation to her at the time she files her petition for waiver of parental consent, has either abused her as defined in Neb.Rev.Stat. § 28-351 (Cum.Supp.2012) or subjected her to child abuse or neglect as defined in Neb.Rev.Stat. § 28-710 (Reissue 2008).

10. Abortion: Minors: Proof. In a proceeding brought under the provisions of Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.2012), the burden of proof on all issues rests with the petitioner, and such burden must be established by clear and convincing evidence.

11. Minors: Emancipation. Experience, perspective, and judgment are often lacking in unemancipated minors who are wholly dependent and have never lived away from home or had any significant employment experience.

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12. Pleadings. The issues in a case are framed by the pleadings.

13. Abortion: Minors: Pleadings. A petition for waiver of parental consent-which seeks authorization from the court to have an abortion without notarized written consent of a parent or guardian of the petitioner— is limited in scope. The scope of this special statutory proceeding is defined by Neb.Rev.Stat. §§ 71-6901, 71-6903, and 71-6904 (Cum.Supp.2012).

14. Abortion: Legislature. Neb.Rev.Stat. § 71-6903 (Cum.Supp.2012) is a creation of the Legislature and did not exist at common law.

[286 Neb. 642] 15. Abortion: Courts: Jurisdiction. The district court's jurisdiction over proceedings pursuant to Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.2012) arises from a legislative grant and is inherently limited by the grant.

16. Abortion: Courts: Jurisdiction. Because of the limited scope of an action pursuant to Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.2012), in hearing such a matter, the district court acts as a special statutory tribunal to summarily decide the issues authorized by the statute.

17. Constitutional Law: Statutes: Legislature: Courts. When the Legislature has expressly chosen a judicial forum for the resolution of issues under Neb.Rev.Stat. § 71-6903 (Cum.Supp.2012), it is not the Nebraska Supreme Court's province to rewrite the statute or suggest alternate or additional procedures to be utilized in this context, unless the judicial bypass statute violates the state or federal Constitutions or a federal treaty.

18. Legislature: Declaratory Judgments. The Legislature has authorized a declaratory judgment action.

19. Constitutional Law: Jurisdiction: Equity. The equity jurisdiction of the district court is granted by the Constitution and cannot be legislatively limited or controlled.

20. Administrative Law: Minors: Guardians and Conservators. The Nebraska Department of Health and Human Services is the legal guardian of all children committed to it.

PER CURIAM.

INTRODUCTION

Generally, an abortion cannot be performed upon an unemancipated pregnant woman under 18 years of age unless a physician obtains the notarized written consent of both the pregnant woman and one of her parents or a legal guardian. [1] This proceeding was instituted under the provisions of Neb.Rev.Stat. § 71-6901 et seq. (Cum.Supp.2012) by a pregnant 16-year-old (petitioner) seeking authorization for an abortion without consent of a parent or guardian. The district court denied her request, and pursuant to the expedited procedures [286 Neb. 643] outlined in § 71-6904, she appeals to this court. Because we determine that petitioner did not establish by clear and convincing evidence that she is a victim of abuse or neglect under § 71-6903(3) or that she is sufficiently mature and well informed to decide on her own whether to have an abortion, we affirm the judgment of the district court.

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BACKGROUND

Petitioner is 16 years old and 10 weeks along in her pregnancy. Due to abuse and neglect by petitioner's biological parents, a juvenile court entered an order in February 2011, placing her temporary custody with the Nebraska Department of Health and Human Services (Department). A juvenile case was initiated, and petitioner and her two siblings, ages 9 and 7, were placed in a foster home through the Department. In May 2013, the juvenile court entered an order terminating by relinquishment the parental rights of petitioner's biological parents.

At the confidential hearing, petitioner explained her desire for an abortion. She testified that she would not be able to financially support a child or " be the right mom that [she] would like to be right now." She feared that she might lose her foster placement if her foster parents learned of her pregnancy. Petitioner testified that her foster parents have strong religious beliefs about abortion. She felt that her foster parents " would not okay" an abortion and that " they would not just be taking it out on [petitioner], it would also be taken out on the child." Petitioner believed that putting the child up for adoption would be worse for her and her family because her foster parents would have resentment toward her. Petitioner feared that her foster parents would tell her siblings that she was a " bad person." The court stated that " when you have the ...


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