November 01, 2013

Foster Parents Could Consent to Abortion for Minor Whose Parental Rights Had Been Terminated

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Anonymous 5, 2013 WL 5497122 (Neb.).

District court properly denied foster youth’s petition to authorize her to obtain an abortion where her birth parents’ rights had been terminated. There was insufficient evidence that her foster parents would not act in her best interests and although she had experience raising her siblings, was on target to graduate early, and had savings to move out on her own, her lack of experience working and living independently caused court to conclude she lacked maturity to make decision. 

Sixteen year old petitioned the district court to authorize her to obtain an abortion when she was several weeks pregnant. At the hearing on her petition, she testified she did not feel ready financially or otherwise to be a good parent. She stated that she did not think her foster parents would be happy about her abortion, citing their stated religious beliefs. She believed they would react negatively toward her if she carried the fetus to term and anticipated that the foster parents would condemn her unwed pregnancy and possibly taint the relationship between her and her siblings. 

The district court concluded that, because her parents’ rights had previously been terminated, her foster parents best stood in place of them regarding consent for an abortion. The court found that it had no reason to think they would not act in her best interests. It therefore denied her petition to authorize an abortion over the consent of a parent. 

The youth appealed to the Nebraska Supreme Court. The court first addressed her argument regarding authorization under the abuse or neglect provision of the state statute. 

Under a recent statute, a court must authorize a minor’s abortion without the consent of a parent or a guardian if their parents subjected them to abuse or neglect. The Nebraska Supreme Court held that this statute must have been passed to ensure a youth would not be required to obtain consent of parents who did not support their best interests. Here however, though her parents did abuse and neglect her, because their rights were terminated, their consent was not required, making the statutory provision inapplicable.

Regarding the youth’s maturity and how well she was informed, the Nebraska Supreme Court noted this inquiry should account for the youth’s behavior, apparent ability to weigh the options, and ability to state reasoning and conclusions. The record showed the youth had  significant experience raising her siblings, was set to graduate high school early, planned to leave foster care after she graduated, had saved enough money to start out on her own, and planned to go to college but had not decided if she would spend some time working. 

However, the youth was financially dependent on her foster parents and did not have work experience. The youth had attended several counseling sessions on abortion and medical appointments where she discussed the medical risks involved in the decision.

The Nebraska Supreme Court held the trial court properly concluded that the youth lacked the maturity to decide to have an abortion without consent. It therefore affirmed the district court’s order.