
    In the Matter of ANONYMOUS, a Minor.
    AV92000190.
    Court of Civil Appeals of Alabama.
    Jan. 6, 1993.
   RUSSELL, Judge.

This appeal involves the denial of a waiver of consent for an abortion by an un-emancipated minor who was five and one-half weeks pregnant at the time of the hearing.

The minor filed her petition on December 18, 1992, seeking a waiver of consent and requesting appointment of counsel. The matter was heard on December 22, 1992. The trial court denied the minor’s petition, finding that the minor was “not mature and well enough informed to make the abortion decision without parental involvement,” and that the performance of an abortion on the minor was not in her best interests. The minor appeals. We affirm.

We have carefully reviewed the record and the trial court’s lengthy order summarizing the evidence. The court’s order is well written and reasoned and thorough. After summarizing the evidence, the court sets out the reasons for its denial of a waiver as follows:

“First, she has virtually no informed basis of information concerning the medical and physical procedures to be done to her body if she goes through with an abortion. While she apparently believes herself to be in good health with only a minor asthma problem, she has absolutely no medical history to guide her in making a decision of this importance. She has no basis for an informed opinion that she would not be made sterile by this procedure, nor does she have any real appreciation of the risk she may be incurring, such as hemorrhaging, if she goes through with the operation. The conversations she has had with the abortion clinic are, in this Court’s opinion, very self-serving and do not adequately apprise [the minor] of the true extent of the risk and complications she might expect medically and physically. Moreover, the absence of a full and complete understanding of her possible emotional complications is even more glaring. She admittedly comes from a Christian family upbringing where high standards for sexual morality have been the order of the day. The Court understands her unwillingness to expose her mistake to her parents; however, the mere fear of embarrassment or loss of respect by her parents is not a sufficient ground to deny them an opportunity to support her emotionally in making this decision. Without parental support, it seems to the Court that she stands a much greater risk of emotional turmoil in the future, especially if she has any complications, short range or long range, either medical, physical, or emotional. In summary, while [the minor] is intellectually competent, the Court does not find that she is experientially competent and sufficiently knowledgeable to make this decision.
“Secondly, [the minor] has fallen way short of convincing this Court that it is in her best interests to have this abortion without her parents’ knowledge. Her reasons for not wanting to tell her parents center mainly on embarrassment born out of her learned value system that sexual activity outside of marriage is not morally correct. Be that as it may, coming from a Christian family where she has had a good childhood and has two warm and loving parents, the Court is convinced that her parents would support whatever decision she might make, which fact she freely admitted before the Court. Her major sticking point appears to center more on her personal embarrassment from having failed to maintain the standard of sexual abstinence ingrained in her moral training and upbringing. She clearly does not want to embarrass herself in front of her parents or cause them to lose faith and confidence in her; however, the evidence is overwhelming that her parents would be very supportive and concerned about her welfare should they discover her pregnancy. With such strong, loving parental concern it is clear to this Court that parental involvement is definitely in this young woman’s best interest. It is clearly not in her best interest to forgo this very important emotional support and counsel from those who have the most vested interest in her present and future welfare, regardless of how unpleasant the situation may be initially when her parents learn of her pregnancy.”

We find that the trial court has fully complied with the requirements of the Parental Consent Act, §§ 26-21-1 through -4, Ala.Code 1975. The court held on the record that the minor is not mature and well enough informed to make the abortion decision on her own and that performance of the abortion would not be in the minor’s best interest. § 26 — 21—4(f)(1)— (2). The court’s legal conclusions are supported by specific findings. § 26-21-4(g).

The judgment of the trial court under the facts here should be accorded the presumption of correctness accorded all judgments and findings of trial court that have heard evidence ore tenus. A trial judge who has seen the minor and heard her testimony is in the best position to make determinations regarding her maturity. We cannot find the trial court’s determination to be plainly and palpably wrong. Matter of Anonymous, 515 So.2d 1254 (Ala.Civ.App.1987). Therefore, the trial court’s judgment is due to be affirmed.

AFFIRMED.

ROBERTSON, P.J., concurs in result only.

THIGPEN, J., dissents.

ROBERTSON, Presiding Judge,

concurring in result only.

I concur in the result only, because I question whether our supreme court has elected to apply the “ore tenus” rule in the appellate review of the denial of a petition for a waiver of parental consent. See Ex parte Anonymous, 595 So.2d 497 (Ala.1992), and Ex parte Anonymous, 595 So.2d 499 (Ala.1992).

THIGPEN, Judge,

dissenting.

I must respectfully dissent. It is well established that the trial court has the duty to resolve conflicting testimony and to render a judgment accordingly. Jones v. LeFlore, 421 So.2d 1287 (Ala.Civ.App.1982). Here, however, only the minor testified and therefore, the only evidence that was before the trial court was without conflict. Further, the ore tenus rule does not apply where, as here, the trial court “misapplied the law to the undisputed facts.” Matter of Anonymous, 515 So.2d 1254, 1256 (Ala.Civ.App.1987). (Emphasis in original.)

The minor’s testimony, elicited under difficult circumstances, is clear that she has given considerable thought in arriving at her decision not to involve her parents. She explicitly described to the court how the best interests of both her and her parents would be served by not involving her parents in her decision. It appears of record that this minor is not only considering her future, but the quality of life for an unwanted unborn infant, and the hurt and harm the minor’s mistake would inflict on her parents. To conclude that this minor is not mature enough to make this decision without involving her parents is contrary to the undisputed evidence.

It should be remembered that it is not for the trial court to determine whether a minor should actually have an abortion. The trial court is to determine whether the minor may seek an abortion without parental consent. Ala.Code 1975, § 26-21-4. “The law is clear that a waiver may be granted if the minor is mature and well-informed.” Matter of Anonymous, 515 So.2d 1254, 1256 (Ala.Civ.App.1987).

Additionally, it is my opinion, after careful review of the record evidence, that the trial court misinterpreted the wording of Ala.Code 1975, § 26-21-4(a), which states in pertinent part:

“(a) A minor who elects not to seek or does not or cannot for any reason, obtain consent from either of her parents or legal guardian, may petition, on her own behalf, the juvenile court, or the court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement of this chapter.” (Emphasis added.)

The trial court based its denial largely upon the minor’s testimony that she had a good relationship with her parents, and that she would not suffer retribution or violence from her parents if she informed them of her situation and decision. Ala. Code 1975, § 26-21-4, does not require a finding that the minor have a fear of punishment before she may be granted a waiver of parental consent; rather, if the minor for whatever reason elects not to involve her parents, then the trial court may adjudicate the case in accordance with the guidelines in Ex parte Anonymous, 595 So.2d 497 (Ala.1992).

Our Supreme Court has held that factors which demonstrate maturity include a minor’s decision to resort to the judicial procedure and to request the advice of legal counsel. Anonymous, supra.

The record reflects that the minor is sixteen years old, is in the eleventh grade, and is an average student who plans to attend a community college. She testified that she has been dating the same boy for over a year; that she and her boyfriend had sexual intercourse only once; that she became pregnant as a result of that one time; that she has discussed her pregnancy with her boyfriend; and that the boyfriend supports her decision.

The record is clear that the minor acted promptly and responsibly after determining that she might be pregnant. She sought advice from Summit Medical Clinic in Birmingham and she discussed the risks and options with her boyfriend. She then promptly sought legal counsel and the judicial procedure established by statute. Her testimony in response to questions from her attorney and the trial court indicated maturity and responsibility in her actions and her deliberate choice not to involve her parents if unnecessary. She acknowledged that she had made a serious mistake for which she had considered her options, as well as the consequences of each option, including having the infant and accepting parenthood or adoption as alternatives. She further testified that she believed that she could handle any emotional complications arising from an abortion. The trial court expressly found that she was “intellectually competent.”

I empathize with the concerns of the trial court regarding the minor’s possible postoperative emotional problems; nevertheless, the minor made clear that should such occur, she would seek counselling and, as a last resort, she would seek parental involvement. A decision of this gravity should not be based on speculation that the minor will have post-operative emotional problems. Moreover, the minor made clear that she views having the infant and assuming the role of a parent at her age as punishment for her mistake, and that she is not emotionally mature enough or prepared for either marriage or parenting at age sixteen.

I am cognizant of and appreciate the dilemma of the trial judges of this State in making these difficult determinations. The trial judge in the case at bar obviously labored long and placed much thought in his lengthy findings and order; however, a thorough review of the record considering the aforementioned factors established by our Supreme Court demonstrates that the minor is mature enough to make an informed decision concerning abortion on her own and to elect to obtain an abortion without parental involvement as the statutes permit. Accordingly, I would reverse the trial court’s denial; therefore, I must respectfully dissent.  