Bypass of Parental Consent

I’m sorry, but I cannot support a rule change to this extent. If the Court is able to protect the minor’s rights–up to and including an abortion–the Court can certainly continue such protection even if the parents of the petitioner are given notice of the hearing and are allowed to attend. I recommend the proposed Rule 60 (Judicial and Appellate) changes be revised to allow notice to and appearance by parental representatives at such hearings.
Be assured that I have worked with a number of juveniles and been an advocate for victims rights for battered spouses and neglected or abused children throughout the past 25 years. I realize the problems involved in many (if not most) cases of juvenile pregnancy when parents are involved in the abortion decision. I’m sure that is what the whole concept of “hearing” is designed to accomplish in cases of pregnancy: to give the juvenile an opportunity to obtain an abortion without obtaining parental consent. I don’t disagree with that opportunity in appropriate cases.
Nevertheless, parental objection to an abortion may be based on sound, important bases of physiology, sociology, law, and principle. The Court will never know if its decision is best if the Court–contrary to hundreds of years of common law tradition–purposefully excludes even the opportunity of hearing arguments in opposition to the proposed petition.
I know this is a difficult question. I know many parents are unable to be objective in such a situation. The same is just as true for a pregant teen, and the law has traditionally withheld rights to make most decisions from such underage teenagers because of their general lack of maturity in judgment . . . which, of course, may be the primary reason for the pregnancy in the first case.
Certainly the Court must protect minor teenagers and society in general. Furthermore, Courts are increasingly asked to evaluate when the unborn also require protection. In present circumstances, it appears to me that the Court best serves the interests of society as a whole when it specifically addresses the needs of the minor teenager (petitioner), but allows other interested parties WITH STANDING (i.e., parents, and perhaps the unborn’s father) to present their arguments to the Court. If the Court is unable to find the “truth” because additional parties and arguments are present at the hearing, then our entire judicial system is suspect!
Shame on jurists who think to practice law based on trying to prove their similarity in thinking and practice to current trends of court elsewhere. This rule as now written is another example of judicial intervention that goes somewhat beyond the mark.

I think this is a truly evil rule. It seems unreasonable to me that, as a parent (a) I must consent, appropriately, for any medical procedure to be done to my child, regardless of how trivial (administration of an aspirin at school, for example), but (b) that the court system may make it impossible for me, as a parent, to even be aware of my child’s pregnancy and intent to kill my grandchild!
From my perspective as a lawyer, any rule which provides for any sort of remedy, let alone a remedy as drastic as the killing an unborn child, without at least the potential input of all parties with standing to the matter, including the juvenile’s parents and the father of the unborn child, is totally inappropriate because the tribunal cannot get all of the information necessary to make a reasoned decision. Furthermore, this rule is an outrageous usurpation of not only parental responsibility and authority but also of legislative authority which has passed parental notification laws.
This rule should NOT be enacted!

In the version I was sent, 60(c) of the juvenile rule had “under” capitalized in the middle of a sentence. That isn’t the case in the online version, so perhaps it is no longer a problem.
In 60(c), “78-3a-911” should be “78-3a-912,” since section 911 deals with the director, and section 912 deals with the appointment of GALs in specific cases. That said, I was under the impression that the legislature has been restricting the range of what GALs do; for the court to give them responsibility by rule to help with abortions seems like something that would draw a second glance from the legislature.
In 60(d), what is a “judicial day?”
60(d) cannot be aimed at expediting hearings in emergency situations, since HB 85 allows doctors to make professional judgments in emergency situations without resorting to the judiciary. Yet 60(d) seems to eagerly provide a number of ways to streamline the path to the abortion clinic, as if it were an emergency process. HB 85 does not mention a three day maximum time to get a hearing, or a one day maximum continuance, or allowing a clerk to approve an abortion if a judge misses a deadline, or providing private areas with special help to fill out forms, or that a procedural rule related to HB 85 should take precedency over any other rule that might apply. Yet all of that is in 60(d). Some of it is appropriate to a procedural rule. However, taken together it makes the rule vulnerable to an argument that someone was in a hurry to get a politically correct law in place in the form of a rule, to correct what the legislature did.
60(h)’s expedited appeal process, ostensibly there to make things easy for a minor (a process that actually allows a child to get appellate approval for an abortion without even briefing or arguing the case, based on a transcript of a hearing below that would somehow immediately materialize), seems incongruent with the limitation on filing appeals to only the three days following the district court’s decision. Three days isn’t much time.
It seems odd that juvenile rule 60(h) would not include a statement that the juvenile court will have blank notice of appeal forms available, seeing as the appellate rule says that.

Please use the following comment to supersede what I have previously submitted as public comment on Juvenile Rule 60 and Appellate Rule 60.
THE PROBLEM WITH THE ABORTION RULES
Utah Rule of Juvenile Procedure 60 and Utah Rule of Appellate Procedure 60 establish legal procedures for carrying out a judicial bypass procedure under HB 85’s abortion-related parental notification and parental consent requirements. These rules must be assessed in light of whether they properly do so: the rules must create functional procedures but must not effectively create non-procedural legislation, and they must not be out of harmony with HB 85 or other law governing abortion. Unfortunately, these rules go well beyond what was called for in HB 85, and appear to make it easier for a child to get an abortion, which is clearly contrary to the will of the legislature.
APPLICABLE LAW
State Law
Title 76, part 3 of the Utah Code deals with abortion. Section 76-7-301.1 states the intent of the legislature when it passed this law, which was largely to “protect and guarantee to unborn children their inherent and inalienable right to life as required by Article I, Sections 1 and 7, Utah Constitution.” Article I is the Utah Constitution’s “Declaration of Rights,” and such state constitutional declarations are the primary source of stated rights in our system of federalism. In 2006, HB 85 amended title 76, part 3’s provisions regarding parental notification and parental consent when a child seeks an abortion. Those amendment are part of a statutory scheme intended to protect unborn life.
Federal Law
Although in creating the U.S. Constitution the sovereign states created a national government of only limited enumerated powers, federal courts have frequently declared themselves able to dictate to the states how the states shall conduct themselves. The U.S. Supreme Court has opined that the U.S. Constitution describes an abortion right that states are obliged to respect. Therefore, it is also necessary to weigh HB 85’s amendments and any related procedural rules against Tenth Circuit and U.S. Supreme Court abortion case law.
The relevant federal case law on children and abortions all comes from a handful of U.S. Supreme Court decisions. In 1979 the Bellotti plurality, following Danforth, said that a child can go to court without notifying a parent, in order to convince a court that she is mature enough to make an abortion decision on her own. If the court finds that she is sufficiently mature, she can make her own decision without parental notification or consent. If the court finds that she is not sufficiently mature, then (and only then) the court must look at whether an abortion would be in her best interests, and can authorize an abortion without parental notification or consent if it would be in the child’s best interests. Bellotti made clear, though, that courts can decide that a child is not sufficiently mature to make such a decision without consulting with her parents, and in such cases the court can defer a decision until there is parental notification and consultation. In 1981 the Matheson case—which came from Utah—dealt specifically with when a child is not sufficiently mature to make an abortion decision on her own, and the court determined that parental notification in such cases does not violate the U.S. Constitution, and is a positive thing. In 1983 the court in Ashcroft said that protecting immature children is an important goal that allows for parental notification and consent, but added that there must be a judicial bypass procedure allowing a child to show sufficient maturity to have an abortion without letting her parents know she is having the surgery. In 1990, the Akron court observed that there had been no prior decision on judicial bypass as it pertains to parental notification statutes, and that it would not decide that question in that case, but stated that judicial bypass statutes regarding parental consent—which would automatically suffice as parental notification bypass procedures also, if used for that purpose—require a decision regarding maturity, a decision regarding best interests if there is insufficient maturity, anonymity for the child (but not complete anonymity, since it is not necessary to allow use of initials or pseudonyms in bypass proceedings, just an appropriate protection of confidentiality), and an expedited procedure (interestingly, the court thought that “days” in a statute would most likely mean calendar days rather than business days). Akron specifically stated that constructive authorization (getting approval automatically if a judge does not timely decide a judicial bypass matter) and a burden of proof lower than “clear and convincing” are not constitutionally required. Casey reiterated that parental consent statutes are acceptable, but that states must include a judicial bypass process. The Casey court said that notice can be required to one parent but cannot be required to be sent to both parents, and observed it had not yet parsed the U.S. Constitution to see what the framers intended regarding whether consent must come from one or both parents. HB 85 and the new rules must be viewed in the light of these federal cases.
HB 85
Regarding parental notification, HB 85 states that at least 24 hours prior to having an abortion, a parent must be notified. There is an exception waiving 24 hour notification in medical emergencies, although in such circumstances there is a requirement that whatever notification can be made, must be made. There is also an exception waiving notification in cases involving rape, incest, or abuse by a parent (although reporting to DCFS is required in such cases), and for cases in which a parent has essentially abandoned taking care of a child; if there is parent who was not involved in rape, incest, abuse, or abandonment, then that parent must be notified. Nothing about these provisions appears out of step with the federal abortion case law described above. It is true that the ACLU of Utah argued that HB 85 is constitutionally deficient because a “myriad” of U.S. Supreme Court and other cases, including Bellotti and Hodgson, supposedly say there must be a judicial bypass procedure for parental notification. That conclusion seems incompatible with Akron, which (subsequent to these cases) said that it had not yet reached that issue (the ACLU even cited Akron for its proposition despite the fact that Akron said the opposite).
Regarding parental consent, HB 85 states that before getting an abortion, a child must obtain a parent’s consent. There is an exception in the case of a medical emergency. There is also an exception for judicial bypass situations in which a child obtains a court order allowing her to consent to an abortion without parental involvement, if a judge finds by a preponderance of evidence that the minor is sufficiently mature to be able to give her own informed consent, or that it is in the best interests of the minor to have an abortion. Such proceedings are to be expedited, closed to the public, and the records kept confidential. Nothing about these provisions appears out of step with the federal abortion case law described above (although it could be made clearer in the rule that the best interests determination is to come only if the court does not first find the minor too immature to give informed consent). One thing the statute does not do, is add to the jurisdictional provisions of the Juvenile Court Act (Utah Code § 78-3a-104) a sentence about holding bypass hearings; that seems like an oversight.
ABORTION RULES
HB 85 calls for the courts to create procedural rules to provide for confidential expedited bypass proceedings, and for appeals. Utah Rule of Juvenile Procedure 60, and Utah Rule of Appellate Procedure 60, were implemented under emergency rulemaking power, and are now up for public comment. There are a few oddities in Juvenile Rule 60. It speaks of appointment of Guardian ad Litems but refers to Utah Code § 78-3a-911, dealing with the director of the GAL’s office, rather than to section 78-3a-912, dealing with the actual appointments of GALs. That should be corrected. Also, it mentions something called a “judicial day,” states that bypass hearings must be held within 3 judicial days, and then describes the allowed continuance in terms of hours (24 hours). For consistency, and to avoid the 24 hour provision from looking as if it does not exclude weekends and holidays, the 24 hours provision should have been described consistent with the rest of the rule as being one day. The “judicial day” should have been “day” or “business day,” with there being either an express provision defining “day,” or letting Rule 4 describe what “days” mean. In addition, the appellate rule describes juvenile courts having blank forms, but the juvenile rule itself doesn’t say that, which is odd; that provision would more logically belong in the juvenile rule than in the appellate rule. Despite the apparent intention of HB 108 (redefining “child” and “minor” throughout much of the Utah Code, a task the Juvenile Rules Committee is also undertaking regarding the juvenile rules), the rule describes people under 18 as being “minors” rather than “children.”
Like any procedural rules, these new rules should not make new law but only create procedures meant to implement democratically created law. Unfortunately, Utah Rule of Juvenile Procedure 60 goes well beyond what is required by HB 60 and by U.S. Supreme Court case law. HB 85 only requires a short rule stating that a child can file a confidential petition for an order authorizing the child to consent to an abortion, that a hearing be provided in an expedited fashion (some appropriate time frame would need to be stated), that the petition and the records of the proceeding be confidential, that an expedited appeal be available. Juvenile Rule 60 goes beyond this and states that a child should get help in a private place to complete a bypass request, but need not provide personal information beyond her name. It allowing filing in any county, without fee. It provides for appointment of a Guardian ad Litem or other attorney, presumably at state or county expense despite there being no statutory provision for imposing on taxpayers the burden of supporting such efforts to obtain an abortion. It allows children to phone in to a hearing for free, rather than appear. By limiting continuances to 24 hours, it suggests—especially in view of Akron—that it means 24 hours instead of one business day (a situation further confused by the rule’s statement that it supersedes any other rule, perhaps including Rule 4). The rule closes the hearing to everyone but the minor, despite the statute only closing the hearing to the public; this rule would exclude someone with an interest in the minor or the unborn child who already knows about the hearing. Juvenile Rule 60 also requires a clerk to issue an order allowing a minor to have an abortion, if a judge misses the hearing deadline. Such things as requiring a clerk to authorize an abortion because a judge is late, are uncalled for by HB 85 or by relevant federal case law, and suggest that the current shape of the rule was formed with political considerations in mind, specifically a desire to streamline the abortion process beyond what the legislature intended.
SOLVING THE PROBLEM
Juvenile Rule 60 should be brought into conformity with HB 85, Utah Code § 76-7-301.1, and the minimum requirements of federal case law by paring it back to something like this (the provision regarding appealing a judicial failure to make a decision may be awkward, but it is better than forcing clerks to authorize abortions):
Rule 60. Judicial bypass procedure to authorize a child to consent to an abortion.
(a) Petition. An action for an order authorizing a child to consent to an abortion without the consent of a parent or guardian is commenced by filing a petition. Blank petition forms will be available at all juvenile court locations.
(b) Expedited hearing. Upon the filing of the petition, the court shall immediately schedule a hearing to be held within three days, and shall immediately provide the child with the hearing date. If at the hearing the court determines that additional time is necessary to gather and receive more evidence, the court may continue the hearing for up to one day. At the conclusion of the hearing, the court shall rule on whether the child is authorized by statute to consent to an abortion, and shall sign an appropriate order. If the petition is denied, the court shall inform the child of the right to an expedited appeal.
(c) Appeal. A child may appeal the denial of a petition, or may appeal if the court does not take action within the time frames established by this rule, by filing a notice of appeal at the juvenile court within three days of the court’s order or within three days of the time in which the court should have held a hearing and issued an order. Blank appeal forms will be available at all juvenile court locations. The clerk shall immediately notify the clerk of the court of appeals when a notice of appeal has been filed.
(d) Confidentiality. The petition, hearing, and record are confidential.
Utah Rule of Appellate Procedure 60 should also be modified similarly:
Rule 60. Judicial bypass appeals.
(a) Scope. This rule applies to an appeal from an order denying or dismissing a petition, or from the failure to take action on a petition, filed by a child to bypass parental consent to an abortion under Utah Code § 76-7-304.5.
(b) Jurisdictional limitation. This rule does not permit an appeal to be taken in any circumstances in which an appeal would not be permitted by Rule 3.
(c) Notice of appeal. A minor may appeal an order denying or dismissing a petition or from the failure to take action on a petition to bypass parental consent, by filing a notice of appeal in the juvenile court within three days after entry of the order or within three days of the time in which the juvenile court should have held a hearing and issued an order. If the juvenile court issued an order, the notice of appeal must be accompanied by a copy of the order. The clerk of the juvenile court shall immediately notify the clerk of the court of appeals that the appeal has been filed.
(d) Record on appeal. The record on appeal consists of all papers and exhibits filed in juvenile court, and a recording or transcript of the proceeding before the juvenile court. The clerk of the court of appeals shall request the record immediately upon receiving notice that the appeal has been filed. Upon receiving this request, the clerk of the juvenile court shall immediately transmit the record to the court of appeals by overnight mail or in another manner that will cause it to arrive within two days after the notice of appeal is filed.
(e) Brief. A brief is not required. However, the child may file a typewritten brief within two days after the notice of appeal is filed.
(f) Oral argument. If ordered by the court, oral argument will be held within three days after the notice of appeal is filed. The clerk of the court of appeals shall immediately notify the child of the date and time for oral argument.
(g) Disposition. The court shall enter an order stating its decision immediately after oral argument or, if oral argument is not held, within three days after the date the notice of appeal is filed. The clerk shall immediately notify the minor of the decision. The court may issue an opinion explaining the decision at any time following entry of the order.
(h) Confidentiality. The petition, hearing, and record are confidential.