Arbitration & Mediation

Minor Not Demonstrate Sufficient "Maturity" For Waiver of Parental Notification for Abortion

By Christopher B. Hopkins, Esq.

As frequent readers of this blog are aware, "procedural unconscionability" is the first prong of analysis for the enforcement of arbitration which involves factors such as the circumstances surrounding the execution of a contract. It also includes questions of the signor's capacity to contract. The Fourth DCA, in particular, at times has decidedly watered down the standard for capacity to contract, noting that a signor's age and lack of law school training may be signs of inability to contract. See Romano v. Manor Care.

We continue to be intrigued by a developing line of Florida cases involving the question of a judicial finding of "maturity" under the Judicial Waiver of Parental Notice of Termination of Pregnancy. We mentioned this before in another In Re Doe case. The line between a finding of "maturity" in the young versus a finding of "capacity" in the elderly is conceiveably entangled. Moreover, in the abortion context, the assessment of "maturity" seems especially infused with judicial opinions on abortion itself. At least that's what the decisions either hint at or, in the case of In Re: Petition of Jane Doe, specifically set forth.

The Second DCA affirmed a denial of the petition seeking judicial waiver. It appears the minor will likely have to inform her parents. Under the Notification Waiver statute, the minor has the burden of proof to either (a) show clear and convincing evidence of sufficient maturity to terminate the pregnancy or (b) preponderance of the evidence that waiver is in the best interest of the pregnant minor.

The In re Petition of Jane Doe decision emphasizes the importance of thorough questioning by the lawyer about maturity. This is a good lesson as well for arbitration-lawyers when they address capacity to contract. The lesson being: an 11-page transcript is likely not enough.

The court held that "yes" and "mm hmm" answers to questions about whether she considered other options were "conclusory." Since the minor bears the burden, the court was looking for testimony regarding experience, perspective and judgment. Admitting that "maturity is difficult to define, let alone determine," these questions are resolved based upon a case-by-case analysis -- much like how the courts ascertain "unconscionability."

The Panel sets forth the various areas of detailed testimony necessary for the minor to meet her burden. Again, it is comparable to the "circumstances surrounding the signing of the agreement" standards set forth in cases like Gainesville Health Care v. Weston.

In the arbitration arena, enforcement is supposed to be favored. Trial judges, however, often have different opinions about that public policy. In the abortion context, judges are likewise human and there, in In Re Petition of Jane Doe, were apparently some comments made by the trial judge suggesting his anti-abortion views. Likewise, the Second DCA relied upon Alabama, Texas and Utah case law to affirm.

Bottom line: maturity, like capacity and unconscionability, are difficult to establish. A full and complete record (deposition or live testimony) needs to be laid out in a non-conclusory fashion. This applies whether you are seeking to enforce or avoid arbitration.

Full post as published by Florida Arbitration Law on January 28, 2008 (boomark / email).