Supreme Court of FloridaJuvenile Courts Rules CommitteeJudicial Administration Committee500 South Duval StreetTallahassee FL 32399-1927

IN RE: AMENDMENTS TO FLORIDA RULE OF JUDICIALADMINISTRATION 2.420, THE FLORIDA RULES OF JUVENILEPROCEDURE, AND FLORIDA RULE OF APPELLATE PROCEDUREFORM 9.900(f)—2020 JOINT FAST-TRACK REPORT, Case No. SC20-873

Dear Honorable Justices of the Supreme Court and Members of the Committees:

If/When/How: Lawyering for Reproductive Justice and the Center for Reproductive Rights respectfully submit these comments regarding the recent amendments to the Rules of Juvenile Procedure and accompanying forms.

If/When/How: Lawyering for Reproductive Justice is a national legal non-profit organization that works through organizing, training, litigation, and policy advocacy to ensure that all people, regardless of age, may self-determine their reproductive lives. The judicial bypass process, which varies between the 37 states with parental involvement laws and within the local jurisdictions in those states, may be an insurmountable barrier for a young person under 18 who needs access to an abortion. If/When/How works to eliminate these barriers by, among other work, connecting and coordinating legal professionals, clinic staff, and advocates to support training and legal information-sharing among those who support young people.

The Center for Reproductive Rights (“Center”) is a legal advocacy organization dedicated to protecting the right to access safe and legal abortion and other reproductive health care services. For more than 28 years, the Center has successfully challenged restrictions on abortion throughout the United States, including in Florida. Just this year, the Center won an important abortion rights case, June Medical Services v. Russo, in which the U.S. Supreme Court struck down burdensome abortion restrictions and upheld protections for abortion care.1 As a part of our mission, we aim to ensure that all patients, including young people, have meaningful access to reproductive health services, including abortion.

1 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

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The proposed rules and forms accompanying the state’s new parental consent requirement for young people under 18 seeking abortion care without parental involvement, are complicated and burdensome. The proposed rules and forms imply a young person under 18 may seek a waiver of notice, consent, or both and the court may waive notice, consent, or both. This same inaccuracy is repeated throughout all accompanying forms. For example, Form 8.987 invites the petitioner to check if they are seeking a waiver of “□ notice[,] □ consent[, or] □ consent and notice,” and Form 8.990 invites the court to find whether □ notice, □ consent, or □ consent and notice are in the minor’s best interest. Treating a waiver for abortion access as three different waivers—notice, consent, or consent and notice—makes the process confusing and poses risks barring young people from accessing abortion care altogether.

These comments 1) discuss the protections for abortion care for young people under the United States Constitution and the Florida Constitution and, 2) underscore burdens young people already faced in Florida before the new law went into effect. Barriers to abortion access for young people were already onerous and the new requirement has made it even more difficult. If the state does not make the rules and forms less burdensome, the state risks effectively barring access to the judicial waiver process thus implementing the parental involvement laws unconstitutionally under the United States Constitution. We urge the Honorable Justices of the Supreme Court and Members of the Committees to make abortion access less burdensome for young people and combine the judicial waiver process for notification and consent into one waiver.

I. Florida’s proposed rules and forms are burdensome and should be simplified to preserve young people’s rights by combining the judicial process for notification and consent into one waiver.

Chapter 2020-147, Laws of Florida, the law enacted from Senate Bill 404 (2020), amended § 390.01114, Fla. Stat. to require parental consent, in addition to the existing notice requirement, before a young person under the age of 18 may have an abortion. The statute is now named the “Parental Notice of and Consent for Abortion Act.” The state’s proposed form and rules mandate separate consideration of the notice requirement and the consent requirement during the waiver process. This creates unnecessary confusion for young people, advocates, the courts, and health care providers. We strongly recommend that the proposed forms be simplified by creating one waiver process for both notice and consent.

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a. The United States Constitution forbids a person from exerting veto power over another’s decision to have an abortion.

In Bellotti v. Baird and subsequent cases, the Supreme Court made clear that parental involvement laws must include an alternative mechanism that allows a young person who is unable to involve a parent or guardian in their decision to nonetheless obtain an abortion.2 As the Bellotti Court observed, the life consequences of carrying a pregnancy to term are as serious for a young person as they are for a legally-recognized adult.3 Thus, it is inappropriate to “give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.”4 Without an “alternative procedure” for the young person to obtain authorization for the abortion, mandatory parental involvement laws give a third party an absolute veto over their decision and are therefore unconstitutional.5

In Bellotti, the Court said parental involvement laws are only constitutional if the state provides a mechanism for bypassing the requirement. In Bellotti, that bypass mechanism is the “judicial bypass” or judicial waiver process. The majority of states with parental involvement laws, including Florida, have implemented a judicial waiver process in line with what is described by the Court in Bellotti.6 We disagree that the judicial waiver process actually serves as an adequate bypass mechanism, and maintain that the bypass process is itself a barrier to abortion access,7 however, the law is clear that access to a judicial bypass is a required component of statutorily mandated parental involvement laws.8

If the proposed rules and forms are overly complicated and burdensome, they may act as a bar to the Florida judicial waiver process, which would eliminate the constitutionally required mechanism of bypass. We urge the Honorable Justices of the Supreme Court and Members of the Committees to acknowledge the importance of a clear and simple judicial bypass process, and to ensure that young people in Florida

2 Bellotti v. Baird, 443 U.S. 622, 643I (1979); See, e.g. Ohio v. Akron Ctr. for Reproductive Health, 497 U.S. 502, 511 (1990); Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (reaffirming requirements for parental consent bypass articulated in Bellotti).3 Bellotti v. Baird, 443 U.S. at 643-644. 4 Bellotti, 443 U.S. 622 at 643 (citing Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 72 (1976). 5 See id. at 649 (“where the pregnant minor goes to her parents and consent is denied, she still must have recourse to a prompt judicial determination of her maturity or best interests.”). 6 If/When/How: Lawyering for Reproductive Justice, Judicial Bypass Wiki (2020), https://judicialbypasswiki.ifwhenhow.org/. 7 See infra notes 17-21 and accompanying text. 8 Id.

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have meaningful access to information about judicial bypass. Incorporating all forms and rules to allow a single waiver of combined notice and consent requirements would greatly simplify the process for both the courts and for young people in Florida seeking to exercise their constitutional right to end a pregnancy.

b. Florida’s new parental consent law harms young people, however, since it is in effect, we urge the state to implement the new restriction through less obstructive means.

Article I, Section 23 of the Florida State Constitution provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into his private life.”9 Florida’s highest Court has recognized that this privacy provision is “clearly implicated in a woman’s decision of whether or not to continue her pregnancy.”10 The Florida Supreme Court has explained that the Florida Constitution’s privacy clause “embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution.”11

As the Florida Supreme Court has explained, because the right to privacy is fundamental under the Florida Constitution, it demands the “compelling state interest standard.”12 Under this test, the state must demonstrate that a statute serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.13 Indeed, a statute encroaching on this right is “presumptively unconstitutional.”14

We believe that the state’s new consent requirement is constitutionally suspect under long standing state privacy rights. However, since this law is in effect, we urge the Honorable Justices of the Supreme Court and Members of the Committees to make the process less intrusive on those seeking care. We urge the reviewing committee to expand access to abortion care for young people and allow for an easier judicial bypass process for both young people and Florida courts.

9 FLA. CONST. ART. I, § 23.10 N. Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 621 (Fla. 2003) (quoting In re T.W., 551 So. 2d 1186, 1192 (Fla. 1989).11 In re T.W., 551 So.2d at 1192. 12 Id. at 1192 (quoting Winfield, 477 So.2d at 547).13 Id.; see also N. Fla., 866 So.2d at 622. 14 N. Fla., 866 So.2d at 626 (emphasis added).

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II. Parental involvement laws pose significant barriers to young people’s access to abortion—and this was true in Florida even before passage of Senate Bill 404.

This new requirement only further burdens young people, who already faced barriers before Senate Bill 404 became law. While the constitutional requirement of a judicial waiver process under the United States Constitution is considered a bulwark to prevent a third party from taking from a young person the ultimate decision to terminate a pregnancy, in reality that process is complex, onerous, and inconsistent. Throughout the 37 states that require parental involvement, young people face the possibility of petitioning a court that is hostile to abortion rights;15 trying to protect their privacy and safety while also having to leave school, home, or work to go to court, sometimes in a small community where they might be known by adults who work in the courthouse;16 and navigating transportation to and from both the courthouse and clinic.17 Additionally, the judicial waiver process can be traumatic for a young person,18 and cause additional and unnecessary delays.19

Another significant barrier is access to information about the bypass or waiver process.20 Even when a young person seeks information to pursue a judicial waiver petition, they too often find court personnel who, if not openly hostile, are

15 See Carol Sanger, Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law, 18 COLUM. J. GENDER & L. 409, 420 (2009) (“But in a number of counties and courtrooms, judges are hostile to bypass cases and sometimes to the petitioners themselves.”). See also, In re in re Doe, 973 So. 2d 548, 573 (Fla. 2d DCA 2008) (in dissenting opinion, appellate judge noted that the trial court’s “improper and openly argumentative personal assertions likely would have intimidated most adults—indeed, most attorneys. It is not difficult to imagine the chilling effect that his behavior had on this young woman's ability to elaborate on her situation.”). 16 Rachel Rebouché, Report of a National Meeting: Parental Involvement Laws and the Judicial Bypass, 37 LAW & INEQ. 21, 31 (2019) (“Stakeholders reminded audiences of the restrictions on young people's movement and how challenging maintaining confidentiality can be as one navigates school, work, childcare, and home demands. When still enrolled in school, for example, youth may miss class for clinic and court appointments or may have to drop out of extracurricular activities.”).17 Id. See also, J. Shoshanna Ehrlich, Grounded in the Reality of Their Lives: Listening to Teens Who Make the Abortion Decision Without Involving Their Parents, 18 BERKELEY WOMEN'S L.J. 61, 140 (2003) (“Many of the young women also recounted difficulties in arranging to get to court. Transportation was often hard to obtain and unreliable.”). 18 See Sanger, Decisional Dignity, supra note 15, at 437-51 (discussing the effects of delay, public exposure, humiliation, and feelings of exclusion that accompany the judicial bypass procedure); Ehrlich, Grounded in Reality, supra note 17, at 173-74 (describing the nature of the judicial bypass court experience). 19 American Academy of Pediatrics, Committee on Adolescence, The Adolescent’s Right to Confidential Care When Considering Abortion, PEDIATRICS 139(2), February 2017: 5 (identifying delay and obstruction of professional advice and medical care as the “most damaging effect of mandatory parental notification laws.”).20 Ehrlich, Grounded in Reality, supra note 17, at 140 (“Critically, a number of young women reported getting incorrect information from various sources about their legal options.”).

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uninformed, cannot answer the young person’s questions about the judicial waiver process, or give young people misinformation that may delay or entirely prevent the necessary judicial waiver. This was true in Florida even under the previous statute, which required only parental notice, and not consent.21

In 2019, If/When/How published The Judicial Waiver Process in Florida Courts: A Report (“The Report”). Excerpts from the Report are attached to these comments and the full Report is available at https://www.ifwhenhow.org/resources/the-judicial-waiver-process-in-florida-courts-a-report/. The Report’s authors analyzed data from calls to court clerks in all 67 counties in Florida. They found an astonishing lack of preparedness in Florida courthouses for young people pursuing a judicial bypass petition; in fact, 55% percent of counties were entirely unprepared.

Thirty-seven … counties were classified as unprepared to assist a minor in the judicial bypass process. Typically, these counties could offer very little information to the caller about how the process worked; often court personnel said they had never heard of judicial bypass and were unable to answer questions regarding confidentiality, obtaining an attorney free of charge, or how the process works for non-English speakers. . . . For example, “The woman I spoke to had no idea what I was talking about. She said I needed to get an attorney but I wouldn't be able to get one through them.” Some court personnel in unprepared counties gave legally inaccurate information to callers, like the assertion made by one clerk in a Family Court that a minor could only obtain an abortion without parental consent if they were legally emancipated from their parents.22

Courthouse staff and clerks of court are relied on as a resource for young peopleseeking judicial waiver. The Report, however, highlights that courts are overwhelmingly unprepared to relay essential information about the judicial waiver process for young people. While 37 counties were deemed unprepared based on the lack of information or inaccurate information received by callers, only 11 counties were classified as “prepared,” or knowledgeable about the process.23 Fifteen were found to be semi-prepared and four counties were unable to be reached at all.24

21 See generally, Stephanie Loraine Pineiro & Erin Caroll, The Judicial Waiver Process in Florida Courts: A Report (2019) available at https://www.ifwhenhow.org/resources/the-judicial-waiver-process-in-florida-courts-a-report/. 22 Id. at 9. 23 Id. at 6.24 Id.

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To ensure young people’s constitutional rights are met, courts must provide clear, consistent, accurate, and unbiased information about the judicial waiver process. It is of paramount importance, then, that rules and forms that purport to guide young people and their advocates through the judicial bypass process be accurate, understandable, and comport with constitutional standards.

III. We support the changes to these rules and forms requested by the ACLU of Florida and signatories and have attached an index of those changes to this comment.

At a minimum, the court process, including court forms, should not add to the complex and onerous nature of the judicial waiver process and should be combined into one waiver for both notification and consent. In addition, Florida courts should make clear, consistent, accurate, and unbiased information about the judicial waiver process readily accessible to the public to ensure young people can access the waiver process.

The current rules and forms imply that notification and consent can be bifurcated, applied for and granted separately. This, however, does not conform to the law and may cause confusion. The law directs a court to either issue an order authorizing the young person to choose to have an abortion or dismiss the petition,25 the rules and forms should conform to the law.

We underscore that the constitutionality of the new consent requirement is suspect, however, in implementing this law, we urge the members of the reviewing committee to ease burdens on young people as much as possible by creating consistent forms and rules that allow waiver through one court procedure. The rights of young Floridians should be respected. They deserve access to safe and legal abortion services, without obstructive judicial bypass processes that confuse not only young people, but courts and health care providers alike.

25 FLA. STAT. ANN. § 390.01114(6) (c-d).

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CERTIFICATE OF SERVICE ‌

I HEREBY CERTIFY that the foregoing document has been furnished to the following person(s) on the E-filed date of this document by filing the document with service through the e-Service system (Fla.R.Jud.Admin. 2.516(b)(1)):

COMMITTEE CHAIRS

Michael Jeffrey KornChair, Rules of Judicial Administration CommitteeKorn & Zehmer, P.A.501 Riverside Avenue, Suite 903Jacksonville, FL 32202-4940mkorn@kornzehmer.com

Matthew Charles WilsonChair, Juvenile Court Rules Committee, Children’s Legal Services160 West Government Street, Suite 701Pensacola, FL 32502-5735matthew.wilson@myflfamilies.com,

Hon. Stephanie Williams RayChair, Appellate Court Rules CommitteeFirst District Court of Appeal2000 Drayton DriveTallahassee, FL 32399-0001rays@1dca.org

BAR STAFF LIAISONS TO THE COMMITTEES

Krys Godwin651 E. Jefferson StreetTallahassee, FL 32399-2300kgodwin@floridabar.org

Mikalla Andies DavisBar Staff Liaisons to the Committees651 E. Jefferson StreetTallahassee, FL 32399-2300mdavis@floridabar.org

Respectfully Submitted,

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Nimra Chowdhry*State Legislative CounselCenter for Reproductive Rightsnchowdhry@reprorights.org

Jessica GoldbergYouth Access CounselIf/When/How: Lawyering for Reproductive Justice jessica@ifwhenhow.org

RULE 2.420. PUBLIC ACCESS TO AND PROTECTION OF JUDICIAL BRANCH RECORDS

(a) – (c) [No Change]

(d) Procedures for Determining Confidentiality of Court Records.

(1) The clerk of the court shall designate and maintain the confidentiality of any information contained within a court record that is described in subdivision (d)(1)(A) or (d)(1)(B) of this rule. The following information shall be maintained as confidential:

(A) [No Change]

(B) except as provided by court order, information subject to subdivision (c)(7) or (c)(8) of this rule that is currently confidential or exempt from section 119.07, Florida Statutes, and article I, section 24(a) of the Florida Constitution as specifically stated in any of the following statutes or as they may be amended or renumbered:

(i) - (vi) [No Change]

(vii) Information that can be used to identify a minor petitioning for a waiver of parental or guardian notice orand consent when seeking to terminate pregnancy. §§ 390.01116, 390.01118, Fla. Stat.

(viii) - (xxiii) [No Change]

(2) – (5) [No Change]

(e) – (m) [No Change]

Committee Note

[No Change]

2007 Court Commentary

[No Change]

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RULE 8.805. COMMENCEMENT OF PROCEEDINGS

(a) Petition to Be Filed. Proceedings for a judicial waiver of parental consent or notice of and consent to notice and consent before termination of pregnancy shall be commenced by the filing of a petition in circuit court.

(b) – (c) [No Change]

(d) Procedures Upon Filing Petition. Upon the filing of a petition, the clerk of the circuit court shall immediately:

(1) [No Change]

(2) provide the minor with a certified copy of Form 8.988, Sworn Statement of True Name and Pseudonym;

(3) provide the minor with Form 8.989, Advisory Notice to Minor;

(4) – (5) [No Change]

(e) Fees and Costs. No filing fees or court costs shall be assessed against any pregnant minor who petitions a court for a waiver of parental consent or notice.notice and consent.

RULE 8.810. PETITION

The petition shall include:

(a) – (b) [No Change]

(c) a statement that the minor is pregnant and consent or notice and consent notice and consent has not been waived;

(d) a statement that the minor desires to terminate her pregnancy without consent from or notice to and consent from a parent or legal guardian; and

(e) a short and plain statement of facts to establish any of the following:

(1) [No Change]

(2) The minor is a victim of child abuse or sexual abuse by one or both of her parents or a legal guardian.

(3) Consent from or toNotification and consent fromof the parent or legal guardian is not in the best interests of the minor.

RULE 8.815. COUNSEL

As provided by law, the circuit court shall advise the minor that she has a right to court-appointed counsel at no cost. The court shall, upon request, provide counsel for the minor at least 24 hours before the court proceeding.

RULE 8.820. HEARING

(a) Hearing by Judge. A judge shall conduct an informal hearing on the petition within the time limits provided by law and these rules. General magistrates and special magistrates shall not hear a petition for a judicial waiver.

(b) [No Change]

(c) Burdens of Proof.

(1) [No Change]

(2) A finding that the minor is a victim of child abuse or sexual abuse inflicted by one or both of her parents or a legal guardian requires proof by a preponderance of the evidence.

(3) A finding that consent from or notification to and consent fromof a parent or legal guardian is not in the best interests of the minor requires proof by clear and convincing evidence.

(d) Time Limits. As provided by law:

(1) – (3) [No Change]

(e) Confidentiality of Hearings. Hearings under this part shall be closed to the public and all records thereof shall remain confidential as provided by law. Persons other than the petitioner may be permitted to attend the hearing at the request of the petitioner. The court shall advise all persons in attendance that the hearing is confidential. Subject to a judge’s availability as required under law, hearings held under this part must be held in chambers or in a similarly private and informal setting within the courthouse.

RULE 8.830. TRANSCRIPTS

A court that conducts proceedings pursuant to these rules shall provide for a written transcript of all testimony and proceedings as provided by law.

RULE 8.835. CONFIDENTIALITY OF RECORDS

(a) As provided by law, any information including the petition, documents, transcripts, recordings of cases, and any other information that could be used to identify a minor who has petitioned the court for a judicial waiver of parental notice ofand consent before termination of pregnancy is confidential and exempt from section 119.07(1), Florida Statutes, and section 24(a), Article I, of the State Constitution.

(b) [No Change]

FORM 8.987. PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TONOTICE AND CONSENT BEFORE TERMINATION OF PREGNANCY

IN THE CIRCUIT COURT OF THE ………. JUDICIAL CIRCUIT IN AND FOR …………… COUNTY, FLORIDA

In the Interest of ……………(pseudonym or initials of minor)

/

Case No.: ……….Division: ……….

PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TOBEFORE TERMINATION OF PREGNANCY

I certify that the following information is true and correct:

(1) The pseudonym or initials of the minor (is/are) .................................., and the minor has filed a Sworn Statement of True Name and Pseudonym with the clerk.

(2) The minor is ..... years old.

(3) The minor is pregnant and parental notice orand consent hashave not been waived.

(4) The minor desires to terminate her pregnancy without □ notice □ consent □ consent and notice [check which applies] tonotice to and consent from a parent or legal guardian for one or more of the following reasons:

[check all that apply]

□ a. The minor is sufficiently mature to decide whether to terminate her pregnancy, for the following reason(s): …………………………………………………....... .............................................................................................................................................................

□ b. The minor is a victim of child abuse or sexual abuse inflicted by one or both of her parents or a legal guardian.

□ c. Notification of a parent or legal guardian is not in the best interests of the minor, for the following reason(s): …………………………………………………....... .............................................................................................................................................................

(5) The minor requests that the court enter an order authorizing her to consent to the performance or inducement of a termination of pregnancy without notification of a parent or legal guardian.

(6) The minor requests the appointment of an attorney to represent her in this matter:

[check one]

□ yes

□ no

(7) The minor elects the following method or methods for receiving notices of hearings or other court actions in this case:

□ Through a third party whose name is .................... and whose address and phone number for purposes of notice are ...................., .....................

□ The minor will contact the office of the clerk of court at the following phone number .......................................

I understand that by signing this form I am swearing to or affirming the truthfulness of the claims made in this petition and that the punishment for knowingly making a false statement includes fines, imprisonment, or both.

Signature:

Date: ..........

(You may sign a name other than your true name, such as Jane Doe or other pseudonym under which your petition is being filed.)

FORM 8.988. SWORN STATEMENT OF TRUE NAME AND PSEUDONYM

SWORN STATEMENT OF TRUE NAME AND PSEUDONYM

NOTICE TO THE CLERK OF COURT: A CERTIFIED COPY OF THIS DECLARATION WITH THE CASE NUMBER NOTED ON IT SHALL BE GIVEN TO THE MINOR AFTER SHE SIGNS IT.

THE ORIGINAL SHALL IMMEDIATELY BE PLACED IN A SEALED ENVELOPE WHICH SHALL BE FILED UNDER SEAL AND KEPT UNDER SEAL AT ALL TIMES.

(1) My true name is , and my address is .(print your name) (print your address)

(2) My date of birth is .

(3) I have filed a Petition for Judicial Waiver of Parental Consent to or Notice of and Consent toNotice And Consent Before Termination of Pregnancy under the name or initials

on . (date)

I understand that by signing this form I am swearing to or affirming the truthfulness of the information herein and that the punishment for knowingly making a false statement includes fines, imprisonment or both.

Dated: Signature: (You must sign your true name.)

FORM 8.990. FINAL ORDER GRANTING PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TONOTICE AND CONSENT BEFORE TERMINATION OF PREGNANCY

FINAL ORDER GRANTING PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TONOTICE AND CONSENT BEFORE

TERMINATION OF PREGNANCY

THIS CAUSE having come before the court on a petition for judicial waiver of parental consent or notice of and consent tonotice and consent before termination of pregnancy and the court being otherwise advised in the premises, finds the following:

□ The minor has proven by clear and convincing evidence that she is sufficiently mature to decide whether to terminate her pregnancy, for the following reason(s): ………………………… ……………………………..……………………………………………………………………… ………………………………………………………………………………………………………

The court has considered the following factors in reaching this decision that the minor is sufficiently mature to decide whether to terminate her pregnancy and makes the following findings:

The minor’s age is ……….

The minor’s overall intelligence indicates …………………………………………………………………….

The minor’s emotional development and stability indicates ………………………………………………….

The minor’s credibility and demeanor as a witness indicates …………………………………………………

The minor’s ability to accept responsibility is demonstrated by ……………………………………………..

The minor’s ability to assess both the immediate and long-range consequences of the minor’s choices is demonstrated by ………………………………………………………………………………………

The minor’s ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision is indicated by ………………………………………………………………….………………………………… …………………………………………………………………………

Whether there may be any undue influence by another on the minor’s decision to have an abortion. ……………………………………………………………………………………………………… ………………………………………………………………………

□ The minor has proven by a preponderance of the evidence that she is a victim of child abuse or sexual abuse inflicted by one or both of her parents or a legal guardian, for the following reason(s): ……………………………….…………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… …………………………

The court, having made a finding under this section, will report the abuse as is required by section 39.201, Florida Statutes.

□ The minor has proven by clear and convincing evidence that □ notification of □ consent from OR □ notification ofto and consent from a parent or legal guardian is not in the best interests of the minor, for the following reason(s): …………………………………………………….……………………………………………… ………………………………………………………………………………………………………

…………………………………………………………

THEREFORE, it is ORDERED AND ADJUDGED that:

1. The petition for judicial waiver of parental □ notice □ consent □ notice and consent ofnotice and consent before termination of pregnancy is GRANTED.

2. The minor may consent to the performance or inducement of a termination of pregnancy without notice to a parent or legal guardian.

3. The clerk shall keep and maintain a confidential record of these proceedings as provided by law, and shall seal the record.

DONE AND ORDERED in the .......... court in and for ………… County, Florida, on.....(date)......

(Judge)

FORM 8.991. FINAL ORDER DISMISSING PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TONOTICE AND CONSENT BEFORE TERMINATION OF PREGNANCY

IN THE CIRCUIT COURT OF THE ………. JUDICIAL CIRCUIT IN AND FOR …………… COUNTY, FLORIDA

In the Interest of ……………(pseudonym or initials of minor)

/

Case No.: ……….Division: ……….

FINAL ORDER DISMISSING PETITION FOR JUDICIAL WAIVER OF PARENTAL CONSENT TO OR NOTICE OF AND CONSENT TONOTICE AND CONSENT BEFORE

TERMINATION OF PREGNANCY

THIS CAUSE having come before the court on a petition for judicial waiver of parental consent to or notice of and consent tonotice and consent before termination of pregnancy and the court being otherwise advised in the premises, finds the following:

□ It was not proven by clear and convincing evidence that the minor is sufficiently mature to decide whether to terminate the pregnancy; specifically, the court has considered the following factors in reaching this decision and makes the following findings:

The minor’s age is: ……….

The minor’s overall intelligence indicates: …………………………………………….……………………………………………. …………………………………………….……………………………………………..

The minor’s emotional development and stability indicate: …………………………………………….…………………………………………….. …………………………………………….……………………………………………..

The minor’s credibility and demeanor as a witness indicates: …………………………………………….…………………………………………….. …………………………………………….…………………………………………….

The minor’s ability to accept responsibility is demonstrated by: …………………………………………….…………………………………………….. …………………………………………….……………………………………………..

The minor’s ability to assess both the immediate and long-range consequences of the minor’s choices is demonstrated by: …………………………………………….………………………………………………………………………………………….……………………………………………

The minor’s ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision is indicated by: ………………………………………………………………….………………………… ………………………………………………………………………………………………

The minor’s decision to have an abortion may have been made under any undue influence by another is indicated by: …………………………………………….……………………………………………… …………………………………………….…………………………………………….....

□ It was not proven by the preponderance of the evidence that the petitioner is the victim of child abuse inflicted by one or both of her parents or her legal guardian;

□ It was not proven by clear and convincing evidence that □ notification of □ consent from OR □ notice to and consent from the parent or legal guardian is not in the best interests of the petitioner;

□ Other: …………………………………………….………………………………… …………………………………………….…………………………………………….....

THEREFORE, it is ORDERED AND ADJUDGED that:

1. The petition for judicial waiver of parental consent to or notice of and consent tonotice and consent before termination of pregnancy is DISMISSED.

2. The court shall provide a written transcript of all testimony and proceedings as provided by law.

3. The clerk shall keep and maintain a confidential record of these proceedings as provided by law, and shall seal the record.

4. The clerk shall immediately provide Form 9.900(f) Notice of Appeal of an Order Dismissing a Petition for Judicial Waiver of Parental Consent to or Notice of and Consent toNotice And Consent Before Termination of Pregnancy and Advisory Notice to Minor to the minor or petitioner if other than the minor.

DONE AND ORDERED in the ........ court in and for ............ County, Florida, on.....(date)......

(Judge)

FORM 8.992. MINOR’S PETITION TO CHIEF JUDGE TO REQUIRE A HEARING ON HER PETITION FOR JUDICIAL WAIVER OF CONSENT OR NOTICE AND CONSENTPARENTAL NOTICE AND CONSENT

MINOR’S PETITION TO CHIEF JUDGE TO REQUIRE A HEARING ON HER PETITION FOR JUDICIAL WAIVER OF CONSENT ORPARENTAL NOTICE AND CONSENT

I, …..(name)….., hereby petition the chief judge of this judicial circuit for an order directing the judge to whom this case is assigned to hold a hearing within 48 hours after receipt of this petition by the chief judge, and requiring the court to enter an order on my petition for judicial waiver of consent or notice and consentparental notice and consent within 24 hours after the hearing.

In support of this petition, I say:

My petition for judicial waiver of notice was filed with the Clerk on …..(date)……

The third business day from the date of filing my petition was …..(date)……

I have not requested an extension of time for the hearing required to be conducted.

No hearing has been conducted by the court within the time required by statute.

WHEREFORE, I ask the chief judge to enter an order requiring the hearing on the petition for judicial waiver to be conducted within the next 48 hours, and requiring the court to enter its order within 24 hours after that hearing.

Signature:

Date:

Time: [to be stamped by Clerk]

RULE 9.900. FORMS

(a) – (e) [No Change]

(f) Notice of Appeal of an Order Dismissing a Petition for a Judicial Waiver of Parental Consent to or Notice of and Consent toNotice And Consent Before Termination of Pregnancy and Advisory Notice to Minor.

IN THE CIRCUIT COURT FOR THE JUDICIAL CIRCUIT (NUMERICAL DESIGNATION OF THE CIRCUIT) IN AND FOR COUNTY, FLORIDA

Case No. In re: Petition for a Judicial Waiver of Parental Consent to or Notice of and Consent toNotice And Consent Before Termination of Pregnancy.

________(Your pseudonym or initials)

Appellant./

NOTICE OF APPEAL

NOTICE IS GIVEN that .....(your pseudonym or initials)....., appeals to the .....(District Court of Appeal with appellate jurisdiction)....., the order of this court rendered .....(enter the date that the order was filed on the clerk’s docket)..... [See rule 9.020(h)]. The nature of the order is a final order dismissing a petition for a judicial waiver of parental consent to or notice of and consent tonotice and consent before termination of pregnancy.

Signature: (As signed on your petition for judicial waiver if you are representing yourself)Date:

ORAttorney for (pseudonym or initials of appellant)(address, e-mail address, and phone number of attorney)Florida Bar No.

ADVISORY NOTICE TO THE MINOR

YOU ARE NOTIFIED AS FOLLOWS:

1. You are entitled to appeal the order dismissing your petition for a judicial waiver of parental consent to or notice of and consent tonotice and consent before termination of pregnancy. You do not have to pay a filing fee for the appeal.

2. If you wish to appeal, you must file a notice of appeal. A form for the notice of appeal (Fla. R. App. P. 9.900(f)) will be provided to you with the order dismissing your petition. You must fill in every blank on the form with the information requested. If you need assistance with the form, the clerk of the circuit court will help you complete it.

3. You must file the notice of appeal with the clerk of the circuit court where your case was heard. The notice of appeal must be filed within thirty (30) days of the date when the judge’s written order dismissing your petition was filed with the clerk of the circuit court. If you do not file your notice of appeal within this time period your appeal will not be heard.

4. The notice of appeal is the only document you need to file in connection with your appeal. You may file a motion to seek permission to file a brief in your case, or to request oral argument of your case. These motions or any other motions or documents you file concerning your appeal, except the notice of appeal, must be mailed or delivered to the appellate court for filing. The appellate court that will be reviewing your case is:

The District Court of Appeal

(address of the District Court)

Telephone number:

(Note: The clerk of the circuit court will fill in the blanks above with the appropriate court information).

5. You may request a lawyer to represent you in your appeal. You must tell the judge who heard your petition for a judicial waiver of parental consent to or notification of and consent tonotice and consent before termination of pregnancy that you wish to have a lawyer appointed.

(g) - (n) [No Change]

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

In order to conform to filing requirements we have included excerpts from If/When/How’s 2019 report The Judicial Waiver Process in Florida Courts: A Report (“The Report”). A PDF version of the full report is available at https://www.ifwhenhow.org/resources/the-judicial-waiver-process-in-florida-courts-a-report/ or can be requested by emailing us at info@ifwhenhow.org.

This Report was authored by Stephanie Loraine Pineiro, MSW, consulting for If/When/How: Lawyering for Reproductive Justice and Erin Carroll, MPH, with the Center for Reproductive Health Research in the Southeast. This Report would not be possible without the invaluable assistance of volunteers from partner organizations, including Planned Parenthood of North and South Florida, Florida Access Network, Penn Law’s If/When/How Student Chapter, and Power U: Center for Social Change, who worked with Ms. Pineiro to collect the data for this report.

This report is modeled on similar studies including a report published in Michigan. Michigan Youth Rights: The Assessment; A look into the judicial bypass process in Michigan. A report by the Michigan Organization on Adolescent Sexual Health 2015.

INTRODUCTION

THE COURT’S ROLE

County courthouses and clerks of court are relied on as a resource for young people seeking judicial waiver to the notification requirement

There are few resources for young people in Florida about the judicial waiver process, and those who need a waiver are generally referred to the clerk of court in their county.

The National Partnership for Women and Families (NPWF) published a legal guide for pregnant youth in 2009 which includes information about accessing abortion care and an outline of the waiver process. The guide states that young people can go directly to the clerk of court’s office in the courthouse, but notes that the process is often easier if the young person connects with an attorney first. However, the guide is outdated with regard to services, directing young people to websites and programs that are no longer in operation.

A young person who seeks a judicial waiver is entitled to a court appointed attorney at no cost. However, for the court to appoint an attorney the young person must first contact their county clerk and start the process to file a petition. The information a young person gets regarding the waiver process may vary, and this can greatly impact their experience throughout the process or even their ultimate ability to access an abortion.

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

COURT PREPAREDNESS

METHOD

The project coordinator reviewed other studies and a published report from Michigan on court staffs’ responsiveness to calls for information on judicial bypass6 and prepared a script and answer classifications based on those studies. Prior to recruiting volunteers, test calls were made to randomly selected courthouses in counties around the state in order to get a sense of the response’s callers could expect. Volunteers were recruited online through If/When/How law student chapters, through contact with coalition members whose interns volunteered to participate, and individuals known to the project coordinator. In all, 6 volunteers participated in the project. When a call was completed, the caller filled out a response form in which they rated each county based on nine criteria to indicate overall preparedness (see attached questionnaire). The caller also recorded their initial response to the call, how many extensions they had to go through to reach someone, how many times they called, the number of times they were transferred, the total duration of the call, and the department they called or from which they received information.

ANALYSIS

At the completion of the calls, the project manager gathered summary statistics for all variables to demonstrate the percentages for each response callers received on the nine criteria used to measure preparedness. Using this data, counties were then labeled prepared, semi-prepared, unprepared, or unable to contact. Counties labeled prepared demonstrated sufficient enough knowledge in the process that someone seeking information could reasonably file a petition for a judicial waiver based on the information provided by court staff. Counties labeled semi-prepared demonstrated a limited amount of knowledge in the process or aspects of it (for example, whether the proceedings would be kept confidential or if a young person could access an attorney free of charge) but did not provide enough information that someone seeking a judicial waiver would feel sufficiently prepared for the process prior to filing the petition. Counties labeled unprepared demonstrated no knowledge of the process or indicated a judicial waiver would not be possible in the county. Counties were labeled unable to contact if callers were unable to reach court personnel to answer their questions.

County data was further broken down for analysis using demographic data from the American Community Survey five-year population estimates for females between the ages of 15-17. This enabled analysts to evaluate the effect, if any, of population most affected by parental notification laws on county preparedness. Similarly, counties with abortion clinics were identified to determine whether having a clinic or clinics affected preparedness.

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

RESULTS

Prepared counties

The call durations ranged from under one minute to over 30 minutes. Participants often described having to wait through multiple holds, either while waiting for someone to pick up the phone or while court personnel searched for answers to their questions. The average call time for prepared courts was approximately nine and a half minutes, while the average time for semi-prepared was almost 11. By contrast, the call time for unprepared courts was a little over 5 and a half minutes. Callers were typically only transferred once, but a few were transferred up to 3 times, with no variance between prepared, semi-prepared, and unprepared courts. The departments that callers reached varied, with some callers able to get information from someone answering a courthouse’s main number to one who only received answers when she was transferred to the criminal court division. In the case of prepared counties, typically the juvenile or family court division provided the necessary information.

Of Florida’s 67 counties, 11 (16%) were classified as prepared or knowledgeable about the process. Though several counties were unable to sufficiently answer all the indicators used to determine preparedness, an overall awareness of how the process worked and general information about time, costs, and attorney and translator availability was enough for analysts to assume a young person calling about judicial waiver would be able to get the information they needed to proceed. The comment by a caller who reached someone with some knowledge of the process is typical of other similar calls:

“When I called the number, I was not sure what option to select because there was no option for juvenile services. I spoke with main operator who transferred me to Family Court. The person who answered was not too familiar with the process and stated they don't ‘get too many requests for this.’ She put me on hold and was [sic] transferred me to Juvenile division. When I spoke to the person in this department, she informed me I needed to come in person to the courthouse to pick up the forms that I needed to start the process. She was unsure of how long the process would take, so she put me on hold again. She then informed me that after I filed the paperwork, I would be called in for a hearing immediately (within 72 hours, give or take). I would then be notified of a court date. She indicated where I needed to go to pick up the paperwork (forms). She then informed me that the process was confidential and not would not cost me anything. Although she appeared to not have all the information I needed on hand, she made every attempt to help me.”

Some counties demonstrated preparedness without much prompting. For example:

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

“The clerk who answered was very knowledgeable about the procedure and was able to answer all of my questions, even providing detail about the procedure (ex. the judge must issue a ruling within 24 hours of hearing).

When I asked about information for a non-English speaking person he told me the forms were only available in English so I would need someone to help fill those out but that at the hearing the court could have an interpreter present. He also told me that there were only a few people trained in the procedure in the Clerk's office so he would make sure one of them was around for the rest of the day in case I decided to come in; I found this very helpful and thoughtful.”

Overall, callers who found the court personnel knowledge generally commented on the helpfulness of the staff with whom they interacted. One clerk went so far as to offer advice to the caller that they should visit a Planned Parenthood to get counseling before coming to court because the judge would ask about that. Another provided the caller with the number of the attorney in the county who handles judicial bypass cases so she could provide additional guidance for the process.

Semi-prepared counties

Fifteen (22%) counties were classified as semi-prepared in the judicial bypass process. Court staff who were semi-prepared typically demonstrated a degree of knowledge about aspects of the process, but were unable to provide information sufficient enough to assume a young person would be able to proceed with the information provided. For example, a caller who connected with someone in the family law division found that:

“The woman who answered told me that the clerk who usually would have that information was out for the week but that she would try to help me as much as she could. She put me on hold for a while while she researched the statute and read the Notice and Petition for the procedure. She was able to answer most of my questions and was very apologetic that she didn't know more.”

Most of the semi-prepared counties told callers they would need to come in to the courthouse to give them information about the process. The experience of a caller who spoke to someone at a main courthouse line is typical of the responses others received from these counties:

“I spent most of the 16 minutes either on hold waiting for someone to pick up my call or just waiting while she seemingly looked up the procedure. She didn't really know anything and when I finally got information it was just along the lines of ‘you have to come in in person, fill out a form, we will schedule a

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

hearing.’ I asked the first question-- will her parents be notified-- and she didn't know. She tried to find info online but after a while just said I should come in.”

Counties were also classified as semi-prepared if they were able to answer some questions but provided incorrect information. For example, one clerk advised a caller that she would be able to file a judicial bypass petition in a county other than the one in which she resided, but the statute explicitly states that minors must seek a bypass in the county in which they reside. Some counties were also classified as unprepared if they were able to relate to the caller all the details of the bypass except for the fact that the young person is entitled to an attorney free of charge.

Unprepared counties

Thirty-seven (55%) counties were classified as unprepared to assist a minor in the judicial bypass process. Typically, these counties could offer very little information to the caller about how the process worked; often court personnel said they had never heard of judicial bypass and were unable to answer questions regarding confidentiality, obtaining an attorney free of charge, or how the process works for non-English speakers. Many staff members told callers that they would need to contact a private attorney, and while some offered the number for legal aid organizations, others provided little direction for how a young person would go about retaining an attorney. For example, “The woman I spoke to had no idea what I was talking about. She said I needed to get an attorney but I wouldn't be able to get one through them.”

Some court personnel in unprepared counties gave legally inaccurate information to callers, like the assertion made by one clerk in a Family Court that a minor could only obtain an abortion without parental consent if they were legally emancipated from their parents. Still others responded to the callers’ questions by asking if the caller had considered alternatives to abortion. For example, a caller who spoke to someone at the main courthouse number said “The person was very rude and tried to give me information on adoption. She said she could give me information on alternatives to abortion if I wanted them.”

Directing callers to an abortion clinic for information was typical of unprepared courts. In many cases court staff were able to answer questions about confidentiality and costs, but in others they suggested coming in in person or calling a specific judge’s office. In two calls, staff refused to answer any questions over the phone. For example, a caller reached a juvenile court clerk after three attempts and said that:

“The woman who picked up said that I had to come in person to the office. She wouldn't answer any questions on the phone because she said they are not

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

allowed to give information on the phone. When I asked where I could find more information she said I could maybe try Planned Parenthood.”

Unable to be reached

Four (6%) counties were unable to be reached when callers were calling courthouses. When callers called three of the four counties they were given numbers or transferred to other numbers where they were unable to reach a person to whom they could direct their questions. A call to a fourth county was never answered by personnel or a machine.

LIMITATIONS

There were a few limitations to this study. First, the volunteer callers were not asked to follow-up or make additional calls if they were unable to get sufficient information during their initial call. There is some indication that when callers pursued referrals they were more likely to obtain the necessary information to initiate a judicial bypass.

Second, callers’ ages ranged from 17 to 45. There is no indication that court personnel made assumptions about who a caller was calling for, but it is possible that some bias may have been introduced if court staff ascertained that they were speaking with an adult, rather than a person under 18 years of age.

DISCUSSION

Overall, a majority of counties in Florida did not demonstrate that they are prepared to sufficiently assist a young person seeking a judicial bypass. While many suggested that the caller call an abortion clinic, which could have yielded information on the process, ultimately a young person seeking a bypass would have ended up either having to call the courthouse again or go in person to file the petition. Additionally, there is no indication that clinics would have a better sense of the process than the staff charged with facilitating it in courthouses.

* * *

One consistent feature of calls across preparedness level was that one person in a courthouse seemed to be the designated person to discuss judicial bypass. If that person was available, the caller was able to get the information they would need to successfully submit a petition. If that person was not available, the caller’s experience varied: sometimes the person who answered would attempt to get the information they needed in order to assist them, other times it was suggested they call back when the person would be available. In one instance, the caller was told to call back when the person who handled judicial bypass cases returned from vacation, but was never told the person’s name.

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

A final issue that arose during the calls was the not-uncommon request that a caller leave a name and number so they could be called back after the necessary personnel returned or the information the caller required was obtained. This practice has the possibility of compromising a young person’s privacy at a time when it is most necessary to protect it. There may be times when a call back to a young person is required, but there is no mention that the person asking to call back encouraged the caller to use a pseudonym or ensured that the number they would be calling is a private number inaccessible to anyone besides the young person or someone they trusted.

RECOMMENDATIONS

Florida courts are overwhelmingly unprepared to answer questions about the judicial waiver process. Court staff’s inability to provide accurate and unbiased information compromises young people’s right to abortion access, which is protected under the Florida Constitution.7

Florida courts should make clear, consistent, accurate, and unbiased information about the judicial waiver process readily accessible to the public to ensure young people can access the waiver process. The Office of the State Courts Administrator oversees Florida’s 67 Clerk of Court offices and should be responsible for the development and state-wide implementation of guidelines to standardize courthouse responses to questions about the judicial waiver process. Court staff, including Clerks of Court, should be trained to provide accurate, unbiased information when asked about the process or when a young person appears in court to file a petition in person.

Such measures may include:

a) A step-by-step guide detailing the procedures for judicial waiver from the initiation of a petition for judicial waiver to a court's final ruling, and, if applicable, by county, an expected timeline for proceedings; where the minor can locate and obtain materials, physically or online; where and how a petition and any necessary paperwork may be filed; and a list of important deadlines.

b) A list of each county's clerk of court, including addresses, current business hours, and the direct contact information for a staff member who is familiar with the judicial waiver procedures in a particular circuit's jurisdiction.

c) Information about how to access the names and contact information for attorneys who provide services on a pro bono basis to minors seeking a judicial waiver.

d) Information about the evidentiary standard that the court is required to use when deciding whether to grant or deny a judicial waiver, including a list of evidence the minor must provide to the court during the hearing.

e) The Office of State Courts Administrator must provide an adequate amount of

Copyright ©2019 If/When/How, a project of Tides Center. All rights reserved.

published materials in hard copy to each clerk of court and to each health care provider that offers abortion services which includes all of the information regarding judicial waiver procedures.

f) The Office of State Courts Administrator must publish a clearly visible hyperlink on its website that directs the public to a standalone webpage, which may not share a uniform resource locator (URL) with any other information, containing all of the information required.