An unplanned teen pregnancy can be a very traumatic time that leaves the prospective young mother with a major decision to make. The teen parent may decide to give birth and raise the child herself, or she may decide to release the child for adoption. However, there may be serious emotional pain associated with taking a pregnancy to birth and then surrendering that child to never be seen again. As a result, some young mothers in the very early stages may elect to obtain an abortion and end the pregnancy through a medical procedure.
Generally, a minor cannot obtain an abortion in Michigan without obtaining the written consent of at least one of the parents or a legal guardian. MCL 722.903(1). The minor, however, may be reluctant to disclose the pregnancy for fear of reprisal or violence. It is even possible that the parent or guardian would refuse consent for moral, religious or social reasons. This does not mean that the minor is out of options. “If a parent or the legal guardian is not available or refuses to give his or her consent, or if the minor elects not to seek consent of a parent or the legal guardian, the minor may petition the probate court… for a waiver of the parental consent requirement” to obtain an abortion. MCL 722.903(2).
The minor must first make contact with the probate court in person, by appointment or by phone. The minor will have to fill out PC 119 (Petition for Waiver of Parental Consent for an Abortion) and PC 122 (Confidential Information for Proceedings Concerning Waiver of Parental Consent). The probate court, in return, will provide PC 117 (Notice to Minor of Rights Regarding Waiver of Parental Consent for an Abortion) that notifies the petitioner of all the following:
- “All court proceedings will be confidential and you may use your initials in the petition if you do not want to use your full name.” MCL 722.904(2)(a)(i); MCR 3.615(B)(1). To protect the minor’s privacy, all of the following rules are in place:
- “The Confidential Information Sheet and all other documents containing identifying information shall be sealed in an envelope marked confidential on which the case number has been written and placed in a private file. Confidential information shall not be entered into a computer file.” MCR 3.615(B)(2).
- “The court shall maintain only one file of all papers for each case. The file shall be inspected only by the judge, specifically authorized court personnel, the minor, her attorney, her next friend, the guardian ad litem, and any other person authorized by the minor. After the proceedings are completed, the file may be opened only by order of the court for good cause shown and only for a purpose specified in the order of the court.” MCR 3.615(B)(3).
- “The file of a completed case shall not be destroyed until two years after the minor has reached the age of majority. The court shall not microfilm or otherwise copy the file.” MCR 3.615(B)(4).
- “You can ask the court to appoint an attorney or guardian ad litem to help you before or after filing the petition. If you ask the court for an attorney or guardian ad litem, one will be appointed immediately at no cost to you.” MCL 722.904(2)(a)(ii); MCR 3.615(F)(1); MCR 3.615(G)(1). The minor will have to complete PC 118 (Request and Order for Court-Appointed Attorney/Guardian Ad Litem for Waiver of Parental Consent). The court-appointed attorney or guardian ad litem must be appointed within 24 hours upon request. MCL 722.904(2)(e); MCR 3.615(F)(3). “If it deems necessary, the court may appoint an attorney to represent the minor at any time”, even if it was not requested. MCR 3.615(F)(2). “If an attorney is appointed to represent a minor prior to filing a petition, the attorney shall consult with the minor within 48 hours of appointment.” MCR 3.615(F)(4). “At any time if it deems necessary, the court may appoint a guardian ad litem to assist the court” if it believes that the minor’s best interests are not properly considered. MCR 3.615(G)(1). The appointment of the guardian ad litem can occur even if not requested by the minor. “The guardian ad litem may obtain information by contacting the minor and other persons with the consent of the minor, provided the confidentiality of the proceedings is not violated.” MCR 3.615(G)(2).
- “You can ask the clerk for help in preparing and filing your petition.” MCL 722.904(2)(a)(iii); MCL 722.904(2)(c). This right is an exception to the general rule that forbids court clerks from assisting litigants in completing paperwork. “On request of the minor or next friend, the court shall provide the minor with assistance in preparing and filing of a petition, confidential information sheet and request for appointment of an attorney…” MCR 3.615(D).
- “You can have the petition signed and filed by a “next friend” instead of doing it yourself. A “next friend” is any competent and responsible adult. The following cannot be a next friend: a) a physician who performs abortions, b) a person who is employed or paid by a physician who performs abortions or an organization that provides abortions or abortion counseling and referral services, and c) a person who serves as a board member or volunteer to an organization that provides abortions or abortion counseling and referral services.” MCL 722.902(d). “The next friend may act on behalf of the minor without prior appointment of the court and is not responsible for the costs of the action.” MCR 3.615(E).
- “The forms you will need to file with the court will be given to you free of charge and you can file your petition without paying a filing fee.” MCL 722.904(2)(f).
- “You will have a hearing on your petition within 72 hours, excluding Sundays and holidays.” MCL 722.904(2)(g); 3.615(J)(5).
- “All court proceedings are closed to the public.” MCR 3.615(J)(2). “The court shall limit attendance at the hearing to the minor, the minor’s attorney, the next friend, the guardian ad litem, persons who are called to testify by the minor or with the minor’s consent, necessary court personnel and one support person who would not be disqualified as a next friend by MCL 722.902(d).” In fact, the hearing can even be held in the judge’s chambers. MCR 3.615(J)(4).
- “The court is required to issue an order either allowing or denying your petition within 48 hours, excluding Sundays and holidays, after the hearing ends.” MCL 722.904(2)(i); MCR 3.615(J)(5).
There are two major exceptions to the confidentiality rule. First, the probate court may report suspected child abuse if it is disclosed by the minor during the proceedings. MCL 722.904(5). Second, “if a minor who is seeking a waiver of parental consent reveals to the probate court that she is the victim of sexual abuse, and that her pregnancy is, or may be, the result of sexual abuse”, the probate court MUST IMMEDIATELY report the suspected sexual abuse to child protective services or law enforcement and inform the minor of the laws designed to protect her. MCL 722.904(6).
“The petition shall be filed in person by the minor, attorney or next friend.” MCR 3.615(H)(1). “The court shall set a time and place for a hearing and notify the filer at the time the petition is filed. The court shall give notice of the hearing only to the minor, the minor’s attorney, next friend and guardian ad litem. Notice of hearing may be oral or written and may be given at any time prior to the hearing. The hearing may be scheduled to commence immediately if the minor and her attorney, if any, are ready to proceed.” MCR 3.615(H)(2). “Insofar as practical, at the minor’s request the hearing shall be scheduled at a time and place that will not interfere with the minor’s school attendance.” MCR 3.615(H)(3).
The minor has the burden of proof to provide evidence that shows, by a preponderance of the evidence, that the parental waiver for an abortion should be granted. MCR 3.615(J)(1). The Michigan Rules of Evidence don’t apply and “[a]ll relevant and material evidence may be received.” MCR 3.615(J)(3). “The probate court that hears the petition for waiver of parental consent shall issue and make a part of the confidential record its specific findings of fact and conclusions of law in support of its ruling either on the record or in a written opinion.” MCL 722.904(2)(h). After a hearing, the probate court shall grant a waiver of parental consent if it finds either of the following:
- “The minor is sufficiently mature and well-enough informed to make the decision regarding abortion independently of her parents or legal guardian.” MCL 722.904(3)(a).
- “The waiver would be in the best interests of the minor.” MCL 722.904(3)(b).
“If the petition is granted, the court immediately shall provide the minor with two certified copies of the order granting waiver of parental consent”, and is “valid for 90 days from the date of entry.” MCR 3.615(K)(1).
If the petition is denied, the minor can appeal the order to the Michigan Court of Appeals. If the minor wishes to appeal, the probate court will appoint an attorney within 72 hours to help perfect that appeal (and should be the same attorney as before). MCR 3.615(K)(3)(a). However, the time to do so is very limited. “Appeal proceedings shall be expedited and confidential.” MCL 722.904(4). The notice of appeal shall be filed within 24 hours of the issuance of the order denying the petition. MCR 3.615(K)(3)(b). The appeal shall be perfected within 72 hours, excluding Sundays and holidays, from the filing of the notice of appeal. MCR 3.615(K)(3)(d). There is no oral argument unless ordered by the Court of Appeals. MCR 3.615(K)(3)(f).
If you have further questions about parental waivers for abortion procedures relating to minors, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.