2016 Code of Alabama
Title 26 - INFANTS AND INCOMPETENTS.
Chapter 21 - PARENTAL CONSENT TO PERFORMING ABORTION UPON MINOR.
Section 26-21-4 - Procedure for waiver of consent requirement - Notice to parents or guardian prohibited; participation in proceedings; right to counsel; assistance in preparing petition; confidentiality; contents of petition; precedence of proceeding; rules of procedure; waiver of consent; guardian ad litem for interests of unborn child; findings and conclusions; appeal; no fees or costs; related criminal charges.

Section 26-21-4Procedure for waiver of consent requirement - Notice to parents or guardian prohibited; participation in proceedings; right to counsel; assistance in preparing petition; confidentiality; contents of petition; precedence of proceeding; rules of procedure; waiver of consent; guardian ad litem for interests of unborn child; findings and conclusions; appeal; no fees or costs; related criminal charges.

(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. Notice by the court to the minor's parents, parent, or legal guardian shall not be required or permitted. The requirements and procedures under this chapter shall apply and are available only to minors who are residents of this state.

(b) The minor may participate in proceedings in the court on her own behalf. The court shall advise her that she has a right to be represented by an attorney and that if she is unable to pay for the services of an attorney one will be appointed for her. If the court appoints an attorney to represent her, such attorney shall be compensated as provided in Section 15-12-21. If the minor petitioner chooses to represent herself, such pleadings, documents, or evidence that she may file with the court shall be liberally construed by the court so as to do substantial justice.

(c) The court shall insure that the minor is given assistance in preparing and filing the petition. Such assistance may be provided by court personnel including intake personnel of juvenile probation services. The minor's identity shall be kept confidential, but her identity may be made known to the judge, any guardian ad litem, the district attorney or any representative of the district attorney's office of the county where the minor is a resident or the county where the abortion is to be performed, any appropriate court personnel, any witness who has a need to know the minor's identity, or any other person determined by the court who needs to know. Any person who is given the identity of the minor shall keep her name confidential and shall not give it to any other person, unless otherwise ordered by the court.

(d) The petition required in Section 26-21-3(d) shall be made under oath and shall include all of the following:

(1) A statement that the petitioner is pregnant;

(2) A statement that the petitioner is unmarried, under 18 years of age, and unemancipated;

(3) A statement that the petitioner wishes to have an abortion without the consent of either parent or legal guardian.

(4) An allegation of either or both of the following:

a. That the petitioner is sufficiently mature and well enough informed to intelligently decide whether to have an abortion without the consent of either of her parents or legal guardian.

b. That one or both of her parents or her guardian has engaged in a pattern of physical, sexual, or emotional abuse against her, or that the consent of her parents, parent or legal guardian otherwise is not in her best interest.

(5) A statement as to whether the petitioner has retained an attorney and the name, address, and telephone number of her attorney.

(e) Court proceedings shall be given such precedence over other pending matters as is necessary to insure that the court may reach a decision promptly, but in no case, except as provided herein, shall the court fail to rule within 48 hours of the time the petition is filed, Saturdays, Sundays, and legal holidays excluded. Provided, however, this time requirement may be extended on the request of the minor or any other participant in the proceeding, or by order of the court for the purpose of obtaining further testimony or evidence necessary for it to make an informed decision and to do substantial justice. If a juvenile court judge is not available for the hearing provided herein, the clerk of the court in which the petition was filed shall forthwith notify the presiding circuit court judge and the presiding circuit court judge of the circuit shall immediately appoint a district or circuit court judge to hear the petition.

(f) Except as otherwise required by the section, this court shall adhere to the Rules of Juvenile Procedure, the Rules of Civil Procedure and Rules of Evidence required of Alabama courts. The court shall assure that it is presented sufficient probative evidence upon which to make its findings, either granting or denying the minor's petition. If the court determines at the initial hearing on the petition that additional evidence or testimony is necessary, the court may adjourn the hearing and issue instanter subpoenas or otherwise permit any party or participant in the hearing to bring before the court admissible evidence or testimony either in support of or against the petition.

(g) The required consent shall be waived if the court finds either:

(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(2) That performance of the abortion would be in the best interest of the minor.

(h) In determining if either of the requirements in subsection (g) are met, the court shall require that the minor provide probative and admissible evidence, which may include hearsay evidence, that she has been informed and understands the medical procedure of abortion and its consequences and that she has been informed and counseled by a qualified person as to the alternatives to abortion. She shall explain each of the foregoing to the court and the court shall be satisfied that she is making an informed judgment and shall document its finding in its order. The minor shall present such additional probative evidence to the court of her maturity that demonstrates to the court that she has sufficient experience with and understanding of life which enables her to make mature and informed decisions. Further, the minor may provide to the court a substantive explanation of why she cannot consult with her parent, parents, or legal guardian to assist her in making the decision. It shall not be sufficient that the court find the minor mature because she has requested relief from the court, but rather the totality of the evidence must be probative and of such weight to prove that the minor is mature and well-informed enough to make the abortion decision on her own, or that the performance of the abortion will be in her best interest. Uncorroborated legal conclusions by the minor shall not be sufficient to support a determination by the court to grant her petition. In the event of a denial of the petition by the court, the minor may re-file the petition once for a de novo hearing with the court.

(i) The court shall immediately notify the district attorney's office of the county in which the minor is a resident, or the county where the petition was filed of the filing of the petition on the day of such filing and the district attorney or his or her representative shall participate as an advocate for the state to examine the petitioner and any witnesses, and to present evidence for the purpose of providing the court with a sufficient record upon which to make an informed decision and to do substantial justice.

(j) In the court's discretion, it may appoint a guardian ad litem for the interests of the unborn child of the petitioner who shall also have the same rights and obligations of participation in the proceeding as given to the district attorney's office. The guardian ad litem shall further have the responsibility of assisting and advising the court so the court may make an informed decision and do substantial justice. The guardian ad litem shall be compensated as provided in Section 15-12-21.

(k) Either the district attorney or his or her representative, or any other party in the proceeding may request the court for additional time either before the hearing has begun or during the hearing, if justice requires, to obtain evidence, subpoena witnesses, or to obtain and present any evidence or information which will be necessary and appropriate for the court to make an informed decision. In any event, any such delay shall not be more than one business day for which the applicable court is open to the public, unless justice requires an extension thereof. The length of time for any such delay and the information, evidence, or subpoena sought shall be within the sound discretion of the trial court subject to the time constraints of the petitioner related to her medical condition.

(l) Although the court shall not be required or permitted to contact the minor's parent, parents, or legal guardian, in the event that the minor's parent, parents, or legal guardian are otherwise aware of the by-pass proceeding, they, he, or she shall be given notice of and be permitted to participate in the proceeding and be represented by counsel with all of the rights and obligations of any party to the proceeding.

(m) A court that conducts proceedings under this section shall issue written and specific factual findings and legal conclusions supporting its decision and shall order that a confidential record of the evidence be maintained for at least four years. A transcript of the proceedings shall be recorded and if there is an appeal as provided in subsection (n), a transcript of the proceedings shall be prepared forthwith.

(n) An expedited confidential and anonymous appeal shall be available to any minor to whom the court denies a waiver of consent, the district attorney's office, and any guardian ad litem, or the parent, parents, or legal guardian of the minor. If notice of appeal is given, the record of appeal shall be completed and the appeal shall be perfected within five days from the filing of the notice of appeal. Briefs shall not be required but may be permitted. Because time may be of the essence regarding the performance of the abortion, the Alabama Supreme Court shall issue promptly such additional rules as it deems are necessary to insure that appeals under this section are handled in an expeditious, confidential and anonymous manner.

(o) All proceedings under this chapter shall be confidential and anonymous. In all pleadings or court documents, the minor shall be identified by initials only.

(p) No fees or costs shall be required of any minor who avails herself of the procedures provided by this section.

(q) In proceedings under this section and with the consent of the minor for whom such proceedings are conducted, the court may refer for prosecution any criminal charge that may be known to the court, including, but not limited to, statutory rape.

(Acts 1987, No. 87-286, p. 397, §4; Act 2014-445, p. 1660, §1.)