FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA
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No. 1D2023-3326
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IN RE: JANE DOE 23-B,

Appellant.

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On appeal from the Circuit Court for Leon County.

Lance Eric Neff, Judge.

January 3, 2024

ROWE, J.

This appeal follows the circuit court’s dismissal of a petition

for judicial waiver of the parental consent and notification
requirements for a minor to terminate her pregnancy under
section 390.01114, Florida Statutes (2023). The sole party before
this Court is the minor denied a judicial waiver. We have been
asked to exercise our appellate judicial power to review what
purports to be a final judgment of a circuit court. We must decline.
Because this matter lacks an appellee, there is no justiciable
controversy before the Court. And without such a controversy, we
may not exercise the appellate judicial power granted us under
article V of the Florida Constitution. We, therefore, dismiss the
appeal.

To explain why this matter is not justiciable, we begin with a

discussion of the nature of and division of the powers granted to
and exercised by the judicial branch and the other branches of our
government. A strict separation of powers doctrine is codified in
Florida’s constitution. See Art. II, § 3, Fla. Const.; State v. Cotton,
769 So. 2d 345, 353 (Fla. 2000) (“This Court . . . in construing the
Florida Constitution, has traditionally applied a strict separation
of powers doctrine.”). Article II, section 3, provides that “[n]o
person belonging to one branch shall exercise any powers
appertaining to either of the other branches unless expressly
provided” elsewhere in the Florida Constitution.

The sovereign powers of Florida’s government are then

divided and described in articles III, IV, and V of the Florida
Constitution. Article III vests the legislative power in the Florida
Legislature. Art. III, § 1, Fla. Const. Article IV vests the supreme
executive power in the governor and other executive power in the
lieutenant governor, cabinet, and executive departments. Art. IV,
§§ 1–5, Fla. Const. And article V, section 1 vests the courts with
the judicial power of the state.

Despite the strict separation of powers in article II, section 3,

several provisions of the constitution confer “quasi-judicial,”
“quasi-executive,” and “quasi-legislative” powers among the three
branches. For example, article V provides for the exercise of “quasi-
judicial” power by certain legislative or executive branch officers.
See Art. V, § 1, Fla. Const. (providing for the exercise of “quasi-
judicial power” by “[c]ommissions established by law, or
administrative officers or bodies” as to “matters connected with the
functions of their offices”); Fla. Motor Lines v. R.R. Comm’rs, 129
So. 876, 881 (Fla. 1930) (observing that the Legislature may enact
laws authorizing “administrative officers to perform quasi
legislative or quasi judicial functions that are designed to
effectuate a valid legislative purpose”); cf. Burnett v. Greene, 122
So. 570, 576 (Fla. 1929) (explaining that administrative agencies
may “exercise functions judicial in their nature” but emphasizing
that “the fact that some bodies possess to some extent judicial
powers does not necessarily make such body a court within the
meaning of the Constitution”).

Similarly, several constitutional provisions authorize the

supreme court to exercise quasi-legislative or quasi-executive
powers. See Art. III, § 16(f), Fla. Const. (providing for the supreme
court to exercise quasi-legislative power in judicial
reapportionment); Art. IV, § 1(c), Fla. Const. (providing for the
supreme court to exercise quasi-executive power in rendering
advisory opinions to the governor); Art. IV, § 10, Fla. Const.

2
(providing for the supreme court to exercise quasi-executive power
in rendering an opinion to the attorney general as to the validity
of an initiative petition); Art. V, § 9, Fla. Const. (providing for the
supreme court to exercise quasi-legislative or quasi-executive
power when certifying the need for judges and courts or certifying
the need to redraw circuit or district boundaries).

But despite authorizing the supreme court to perform some

nonjudicial functions, no provision in the Florida Constitution
permits a district court (or any other article V court) to exercise
any power other than the judicial power set out in article V or to
perform the function of any other branch of government. See Ready
v. Safeway Rock Co., 24 So. 2d 808, 810 (Fla. 1946) (Brown, J.,
concurring specially) (“The power vested in the courts by Article V
of the Constitution is judicial power.”).

What, then, is the judicial power granted to a district court

under our constitution? Article V, section 4(a) tells us that “[t]hree
judges shall consider each case and the concurrence of two shall be
necessary to a decision.” Art. V, § 4(a), Fla. Const. Section 4(b) then
describes the jurisdiction of the district courts, including our
authority to hear appeals “from final judgments or orders of trial
courts.” Art. V, § (4)(b)(1), Fla. Const.; see State v. Hull, 20 So. 762,
763–64 (Fla. 1896) (characterizing a proceeding on a writ of error,
the precursor to the present-day appeal, as “less an action between
the original parties than a question between the judgment and the
law”); Atlantic Coast Line R.R. Co. v. Benedict Pineapple Co., 42
So. 529, 532 (Fla. 1906) (Shackleford, C.J., concurring) (“[T]he
primary object of a writ of error is not to try the question between
the parties, but rather to try the judgment of the court below—to
test the judgment by the law. It is not the action to be tried, but
the judgment.”) (internal quotation and citation omitted). Based
on these provisions, two fundamental elements are necessary for a
district court to exercise its judicial power: a case for the court to
consider and jurisdiction to hear it.

As for jurisdiction, “[d]istrict courts are courts of limited

jurisdiction and may only exercise the jurisdiction conferred on
them by the Florida Constitution.” Apthorp v. Detzner, 162 So. 3d
236, 240 (Fla. 1st DCA 2015) (citing Caufield v. Cantele, 837 So. 2d
371, 374 (Fla. 2002)). We recognize that our court and other district

3
courts have exercised appellate jurisdiction to consider many
appeals from circuit court rulings denying judicial waivers under
section 390.01114 and its predecessors. Even so, none of Florida’s
district courts have addressed in a written opinion our jurisdiction
to exercise appellate judicial power in cases arising under the
judicial waiver statute or whether such cases present justiciable
controversies. Cf. Petition of Anonymous 1, 558 N.W. 2d 784, 792
(Neb. 1997) (Caporale, J., dissenting) (explaining that Nebraska’s
supreme court had no jurisdiction to consider the appeal from an
order denying a judicial waiver because “there can be no case or
controversy where the proceeding contemplates that only the
minor’s interests be presented to the court”). We do so now,
understanding our independent duty “to examine our jurisdiction
in every case even if, as here, the issue was not raised.” Wade v.
Fla. Dep’t of Child. & Fams., 57 So. 3d 869, 870 (Fla. 1st DCA
2011); see also W. 132 Feet, etc., v. City of Orlando, 86 So. 197, 198–
99 (Fla. 1920) (“Courts are bound to take notice of the limits of
their authority, and if want of jurisdiction appears at any stage of
the proceeding, original or appellate, the court should notice the
defect and enter an appropriate order.”). Not surprisingly, the only
party before the court—the party asking us to exercise our
jurisdiction to reverse the judgment of the circuit court—does not
question our jurisdiction. Even so, examination of jurisdiction is “a
matter of primary concern to which we must address ourselves sua
sponte when any doubt exists.” Mapoles v. Wilson, 122 So. 2d 249,
251 (Fla. 1st DCA 1960).

We are asked to exercise our appellate jurisdiction under

article V, section 4(b)(1), which grants district courts jurisdiction
to “hear appeals, that may be taken as a matter of right, from final
judgments or orders of trial courts.” Art. V, § 4(b)(1), Fla. Const.
The appellant seeks review of the circuit court’s denial of her
petition for judicial waiver of the requirement that she notify and
obtain consent from her parents before terminating her pregnancy.
The circuit court’s ostensible authority to rule on the petition
springs from the Legislature’s constitutional authority to provide
for a process for judicial waiver. Under article X, section 22, the
Legislature may “require by general law for notification to a parent
or guardian of a minor before the termination of the minor’s
pregnancy.”

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 Article X, section 22, was proposed by joint resolution of the
Florida Legislature and approved by the voters in 2004. See Fla.
HJR 1 (2004) at 631 (proposed art. X, § 22, Fla. Const.). The joint
resolution to amend the constitution to provide for parental
notification followed a 2003 Florida Supreme Court decision
holding unconstitutional Florida’s then-applicable parental
notification law. See N. Fla. Women’s Health & Counseling Servs.,
Inc. v. State, 866 So. 2d 612 (Fla. 2003) (declaring that the
“Parental Notice of Abortion Act” found in section 390.01115,
Florida Statutes, violated article I, section 23 of the Florida
Constitution); Fla. H.R. Comm. on Parental Notification of
Abortion on a Minor, HJR 1 (2004) Post-Meeting Staff Analysis 2
(Mar. 11, 2004)
(https://www.myfloridahouse.gov/Sections/Documents/loaddoc.asp
x?FileName=h0001a.ju.doc&DocumentType=Analysis&BillNumb
er=0001&Session=2004).

Under article X, section 22, the voters granted the Legislature

constitutional authority to enact laws requiring parental
notification when a minor seeks to terminate her pregnancy. But
if the Legislature enacts a parental notification law, article X,
section 22 requires the Legislature to provide for exceptions and a
process for judicial waiver of the required notification.

The requirement for a judicial waiver process in connection

with a parental notification law stems from then-applicable
decisions from the United States Supreme Court. At the time the
voters approved article X, section 22, Supreme Court precedent
held that a state enacting a parental consent or notification law
had to provide for an “alternative procedure” to allow the minor to
obtain authorization for the abortion. See Bellotti v. Baird, 443
U.S. 622, 643 (1979) (“We therefore conclude that if the State
decides to require a pregnant minor to obtain one or both parents’
consent to an abortion, it also must provide an alternative
procedure whereby authorization for the abortion can be
obtained.”) (emphasis supplied) (footnote omitted). In Bellotti, the
alternative procedure the Court was asked to consider was
authorized under a Massachusetts statute authorizing a court
proceeding if the parents refused consent. Id. Even so, the
Supreme Court did not hold or even suggest that a state enacting

5
a parental notification or consent law should delegate to the courts
the function of providing for the required “alternative procedure.”
Id. Quite the contrary. The Court made clear that an
administrative agency could perform the function and perhaps
more appropriately:

As [the Massachusetts parental consent statute]

provides for involvement of the state superior court in
minors’ abortion decisions, we discuss the alternative
procedure described in the text in terms of judicial
proceedings. We do not suggest, however, that a State
choosing to require parental consent could not delegate
the alternative procedure to a juvenile court or an
administrative agency or officer. Indeed, much can be
said for employing procedures and a forum less formal
than those associated with a court of general jurisdiction.

Id. at n.22.

Article X, section 22 does not mention any article V court, nor

does it require the involvement of article V courts in the judicial
waiver process. But see Art. V, § 1, Fla. Const. (allowing
administrative officers to exercise quasi-judicial power in matters
connected with the functions of their offices).

In 2005, the Legislature exercised its authority under article

X, section 22 to enact a parental notification law and provided for
judicial waiver of the required notifications. See § 390.01114, Fla.
Stat. (2005); Ch. 2005-52, § 2, Laws of Fla. The judicial waiver
provision is found in section 390.01114(6)(a), Florida Statutes.
Even though it could have delegated the judicial waiver procedure
to an administrative agency, the Legislature assigned the judicial
waiver procedure to Florida’s circuit courts. Under section
390.01114(6)(a), circuit courts may waive the requirement that
parents of a minor child seeking to terminate her pregnancy
receive notice of and consent to the procedure. The circuit court
must consider these factors:

1. The minor’s:

a. Age.

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 b. Overall intelligence.

c. Emotional development and stability.

d. Credibility and demeanor as a witness.

e. Ability to accept responsibility.

f. Ability to assess both the immediate and long-

range consequences of the minor’s choices.

g. Ability to understand and explain the medical

risks of terminating her pregnancy and to apply that
understanding to her decision.

2. Whether there may be any undue influence by

another on the minor’s decision to have an abortion.

§ 390.01114(6)(c), Fla. Stat. (2023).

In 2020, the Legislature added to section 390.01114 a

requirement, separate from the parental-notification obligation, to
obtain parental consent before terminating a minor’s pregnancy.
Ch. 2020-147, § 2, Laws of Fla. The judicial waiver provision
described above remains the same for dispensing with the consent
requirement. Because article X, section 22 does not address
parental consent, it is essentially irrelevant to this requirement.
Instead, the Legislature relied on its general lawmaking authority
to add the consent requirement, rather than any specific
constitutional provision.

Under the current version of the statute, the minor’s

parents—whose rights to be notified of and consent to the
termination of the pregnancy are at issue—have no voice and no
representation. The lack of any adverse party results in a process
that deprives the circuit court of many tools typically used to
assess the credibility of witnesses presenting testimony. There are
no witnesses to testify about the minor’s bias or reputation for
truthfulness. No prior inconsistent statements are offered to

7
impeach the minor’s credibility. And there is no adverse party to
cross-examine the appellant.

And so, the circuit court often finds itself hearing evidence
drawn from leading questions posed by appointed counsel and
answers provided to those questions by the minor and her chosen
witnesses. See In re Doe, 973 So. 2d 548, 552 (Fla. 2d DCA 2008)
(observing that “[t]he minor responded affirmatively to her
attorney’s conclusory questions regarding whether she had
thoughtfully considered alternatives to having an abortion”). Even
so, “Florida’s judicial waiver statute is not a rubber-stamp regime.”
In re Doe, 370 So. 3d 703, 707 (Fla. 5th DCA 2023) (Pratt, J.,
concurring). To better evaluate the minor’s credibility and assess
the factors laid out by the statute, the circuit court may ask
questions of the minor when her testimony is ambiguous. In re Doe,
973 So. 2d at 559 (Casanueva, J., concurring) (“In situations where
ambiguous testimony is presented, the trial judge is not required
to be a passive observer.”).

The lack of an adverse party and the limited tools available

for the circuit court to evaluate credibility make the judicial waiver
process function less like the adversarial process fundamental to
our Anglo-American system of justice and more like the process
under the civil law where the trial judge acts as independent
inquisitor. See, e.g., Crawford v. Washington, 541 U.S. 36, 43
(2004) (“The common-law tradition is one of live testimony in court
subject to adversarial testing, while the civil law condones
examination in private by judicial officers.”); McNeil v. Wisconsin,
501 U.S. 171, 181 n.2 (1991) (“What makes a system adversarial
rather than inquisitorial is not the presence of counsel . . . but
rather, the presence of a judge who does not (as an inquisitor does)
conduct the factual and legal investigation himself, but instead
decides on the basis of facts and arguments pro and con adduced
by the parties.”).

The appellate process that follows similarly deviates from the

customary process in our adversarial system of justice. When the
circuit court denies a judicial waiver petition and the minor
appeals to the district court, the Legislature and the Florida
Supreme Court require that we render a decision very swiftly. The
consequences of not acting swiftly enough are extraordinary.

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Sections 390.01114(6)(b)2. and (g) provide that the district court
“must rule within 7 days after receipt of appeal” and authorizes an
expedited appeal “as the Supreme Court provides by rule.” Under
Florida Rule of Appellate Procedure 9.147(d), * a district court
reviewing a denial of a judicial waiver must “render its decision on
the appeal no later than 7 days from the transmittal of the record.”

But if a district court does not render its decision within seven
days, the Supreme Court tells us that “the [circuit court’s] order
shall be deemed reversed, the petition shall be deemed granted.”
Fla. R. App. P. 9.147(d). But cf. Art. V, § 4(a) (“Three judges shall
consider each case and the concurrence of two shall be
necessary to a decision.”) (emphasis supplied). This
extraordinary and automatic reversal of the final judgment of a
circuit court—based solely on the inaction of the appellate court—
appears to be unique in Florida law to the judicial waiver process.

Even so, the pace of judicial waiver appeals is not the only
atypical feature in the appellate process. All proceedings under the
judicial waiver statute—including appellate hearings or
arguments—must “remain confidential and closed to the public.”
§ 390.01114(6)(f), Fla. Stat. Consequently, even though we are
authorized by the appellate rules to order briefing or hear oral
argument in such appeals, because of the confidentiality
provisions of section 390.01114(6)(f), any briefing or oral argument
can necessarily come only from the minor child and her counsel.
See Fla. R. App. P. 9.147.

The one-sided nature of the appeal in judicial waiver cases

and closure of the courtroom is foreign to the typical appellate
process where amicus curiae may provide briefing to the court or
where the Attorney General may be heard on the constitutionality

∗
Rule 9.147 was amended on October 12, 2023, with an
effective date of January 1, 2024. See In re Amends. to Fla. Rules
of App. Proc., 372 So. 3d 591, 594 (Fla. 2023). The amended rule
provides that the court’s decision must be rendered “no later than
7 days from the receipt of the notice of appeal. If no decision
is rendered within that time period, the order is deemed reversed,
[and] the petition is deemed granted.” Fla. R. App. P. 9.147 (2024)
(emphasis supplied).
9
of a statute. See, e.g., Fla. R. App. P. 9.370 (authorizing amicus
curiae to provide briefing to the court when granted leave to do so);
Fla. R. App. P. 9.425 (requiring a party to provide notice to the
Attorney General when the constitutionality of a statute or
constitutional provision are at issue); see also § 16.01(4), Fla. Stat.
(requiring the Attorney General to appear in the Supreme Court
or a district court of appeal and attend to “all suits or prosecutions,
civil or criminal or in equity, in which the state may be a party, or
in anywise interested”).

These deviations from the procedures and protections

normally present in an adversarial proceeding raise questions
about the exercise of judicial power in judicial waiver cases.
Questions about whether the circuit court may exercise the judicial
power under article V when it considers a petition for judicial
waiver. Or whether the circuit court has been tasked with
performing the functions of another branch of government when it
grants or denies a waiver. Put differently, it is unclear whether the
Legislature’s grant of authority to circuit courts to effect the
process authorized under article X, section 22 added to the existing
powers of the circuit courts under article V—permitting the circuit
courts to exercise quasi-legislative power by waiving the otherwise
applicable requirements of a duly enacted statute based on the
court’s factual determinations.

We need not address the circuit court’s authority to grant or

deny a judicial waiver because our authority to consider this
appeal is lacking. Whatever power article X, section 22 gives to a
circuit court when the Legislature enacts a judicial waiver law or
whatever government function a circuit court is allowed to perform
when it considers a petition for judicial waiver, article X, section
22 says nothing about appeals or the exercise of appellate judicial
power. It mentions only a process for judicial waiver—a function
that the Legislature has by general law assigned exclusively to the
circuit courts to perform. The Legislature in turn authorized by
general law district courts to hear appeals after a circuit court has
considered a petition for judicial waiver, and only when a circuit
court denies such a petition. In re Doe, 204 So. 3d 175, 176 (Fla.
1st DCA 2016) (“Notably, only a denied petition may be reviewed
on appeal; a petition that is granted is not subject to appellate
review.”).

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 But when it authorized an appeal to the district courts, the
Legislature did not and could not give district courts any new
power or allow us to perform a function of any other branch of
government. This is because the Legislature cannot by general law
require a district court to exercise anything besides the judicial
power granted to it under article V. See State ex rel. Buckwalter v.
City of Lakeland, 150 So. 508, 512 (Fla. 1933) (“It may be said as a
general rule that whatever power is conferred upon the courts by
the Constitution cannot be enlarged or abridged by the
Legislature.”); cf. Cotten v. Cnty. Comm’rs of Leon Cnty., 6 Fla. 610,
613 (1856) (“While it is an essential element in the character of an
independent judiciary firmly to maintain and resolutely to exercise
its appropriate powers when properly invoked, it is equally its duty
to be careful not rashly and inconsiderately to trench upon or
invade the precincts of the other departments of the government.”).
Nor can the Legislature require a district court to perform the
functions of another branch of government. Burnett, 122 So. at 576
(Fla. 1929) (explaining that the Legislature “may not require a
person belonging to the judicial department to exercise the power
which appertains to the legislative department”).

We are left then with the authority to exercise only the

appellate judicial power granted us under article V. We may not
exercise that power here, because there is no justiciable
controversy before our court. The supreme court has explained
that “[t]he judicial power of the state extends to all controversies
justiciable in their nature and to the parties to which or the
property involved in which may be reached by judicial process.” Id.
at 575. A case suitable for the exercise of judicial power requires
“a judicial proceeding for the determination of a controversy
between parties wherein rights are enforced or protected or wrongs
are prevented or redressed.’” First Nat’l Bank of Miami v.
Bebinger, 128 So. 862, 863 (Fla. 1930) (quoting Ex parte Chesser,
112 So. 87, 90 (Fla. 1927)). It is “a fundamental principle of
appellate procedure that only actual controversies are reviewed by
direct appeal.” Sarasota-Fruitville Drainage Dist. v. Certain Lands
Within Said Dist. Upon Which Drainage Taxes for the Year 1952
Have Not Been Paid, 80 So. 2d 335, 336 (Fla. 1955).

11
 And necessary to a justiciable controversy is “the existence of
present or possible adverse parties, whose contentions are
submitted to the court for adjudication.” Bebinger, 128 So. at 863.
When there are no adverse parties, a justiciable controversy is
lacking, and a court may not exercise its judicial power. See Dep’t
of Revenue v. Kuhnlein, 646 So. 2d 717, 720–21 (Fla. 1994)
(explaining that the only exception to the general requirement that
cases must involve a real controversy is where the Florida
Constitution otherwise authorizes advisory opinions); cf. Flast v.
Cohen, 392 U.S. 83, 95 (1968) (explaining that the “case or
controversy” provision of Article III of the United States
Constitution “limit[s] the business of federal courts to questions
presented in an adversary context and in a form historically
viewed as capable of resolution through the judicial process”). This
limitation on our exercise of judicial power is rooted in judicial
fidelity to the doctrine of separation of powers. See Casiano v.
State, 310 So. 3d 910, 913 (Fla. 2021). The supreme court has
explained that a justiciable controversy must be present before a
court may exercise the judicial power, and emphasized that such
controversy must be adversarial:

We have said that there can be no appeal without an

appellant. Forcum v. Symmes, 101 Fla. 1266, 133 So. 88.
We amplify that statement by saying that there can be no
appeal without an appellant and an appellee. In Ervin v.
Taylor, Fla. 1953, 66 So. 2d 816, 817, we said, ‘The
complaint was a mere petition to the court to pass upon
the validity of an act of the legislature. There were no
adversaries, and being none, there was no actual
controversy. In that situation there was no justification
for adjudicating the constitutionality of the enactment.
Ervin v. City of North Miami Beach, Fla., 66 So. 2d 235.’
In the case of Ervin v. City of North Miami Beach,
Fla.1953, 66 So. 2d 235, 236, we emphasized, that
“Judicial adherence to the doctrine of separation of
powers preserves the courts for the decision of issues
between litigants capable of effective determination.”

Sarasota-Fruitville Drainage Dist., 80 So. 2d at 336–37.

12
 This appeal comes to us with only the minor’s interests
presented to the court. And without representation of the interests
of the parents—the parties whose rights are directly implicated
under the parental notification and consent law. Indeed, the
appeal comes to us with no appellee at all. Under these
circumstances, there is no justiciable controversy for us to
adjudicate. See May v. Holley, 59 So. 2d 636, 639 (Fla. 1952)
(explaining the necessity for “some person or persons who have, or
reasonably may have an actual, present, adverse and antagonistic
interest in the subject matter . . . [and] that the antagonistic and
adverse interests are all before the court”). And our jurisdiction is
therefore lacking. Scott v. Francati, 214 So. 3d 742, 747 (Fla. 1st
DCA 2017) (explaining that for a court to exercise its jurisdiction,
there “must exist some justiciable controversy between adverse
parties that needs to be resolved” (quoting Atwater v. City of
Weston, 64. So. 3d 701, 704–05 (Fla. 1st DCA 2011))). Because we
may not exercise our judicial power beyond what has been granted
us under article V, we dismiss this appeal. See Art. II, § 3, Fla.
Const.

DISMISSED.

WINOKUR, J., concurs; B.L. THOMAS, J., concurs with opinion.

_____________________________

Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

B.L. THOMAS, J., concurring.

I concur in the correct decision of the majority holding that

this Court lacks jurisdiction to consider this appeal. There is no
justiciable controversy because there is no adverse party; the
missing adverse party here is at least one of the minor’s parents or
her guardian.

Without notice and without an opportunity to be heard, the

minor’s parents are deprived of the most fundamental liberty

13
interest recognized in law: the fundamental right to care for and
raise their daughter, to advise and counsel her regarding this
decision. “The child is not the mere creature of the state; those who
nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations.”
Pierce v. Soc'y of the Sisters of the Holy Names of Jesus & Mary,
268 U.S. 510, 535, (1925) (declaring statute requiring children to
attend public schools unconstitutional). Instead, section
390.01114, Florida Statutes, applies a most pernicious
presumption: it substitutes a disinterested judge for the daughter’s
parents, forcing the judge to cross-examine the minor, as if the
judge can somehow substitute for the parents. And in doing so, the
statute unquestionably violates the parents’ rights under the Due
Process Clause of the Fourteenth Amendment to the U.S.
Constitution, by excluding them from the courtroom and from
notice and any opportunity to be heard regarding their minor
daughter’s ultimate decision to terminate her pregnancy.

It is difficult to imagine a more grievous violation of

constitutional law. This the state cannot do.

In its essence, the statute terminates parents’ rights to care

for and counsel their own children regarding a serious medical
procedure, without providing parents with any due process under
the law, much less a procedure that protects parents’ fundamental
liberty interest in caring for their children. The U.S. Supreme
Court declared it “plain beyond the need for multiple citation that
a parent’s desire for and right to ‘the companionship, care, custody
and management of his or her children’ is an important interest”
far more precious than any property right. Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27 (1981) (quoting
Stanley v. Ill., 405 U.S. 645, 651 (1972). When the State initiates
a parental rights termination proceeding, it seeks not merely to
infringe upon that fundamental liberty interest, but to end it. “If
the State prevails, it will have worked a unique kind of
deprivation. A parent’s interest in the accuracy and justice of the
decision to terminate his or her parental status is, therefore, a
commanding one.” Id. at 27 (footnote omitted) (citations omitted);
see also Santosky v. Kramer, 455 U.S. 745, 768–70 (1982) (holding
that termination of parental rights proceedings must apply a “clear
and convincing evidence” standard of proof); State ex rel. Sparks v.

14
Reeves, 97 So. 2d 18, 20 (Fla. 1957) (“[W]e nevertheless cannot lose
sight of the basic proposition that a parent has a natural Godgiven
legal right to enjoy the custody, fellowship, and companionship of
his offspring.”).

Here, the parents were excluded from the courtroom and

deprived of any notice that their daughter, with the assistance of
her boyfriend and his mother, sought judicial approval to allow the
minor to terminate her pregnancy without notice to her parents.
Yet under state law, even parents accused of abusing their
children and thus facing termination of their rights, persons
accused of repeat violence, sexual violence, dating violence, and
stalking, all have the right to notice and an opportunity to be heard
before an adverse adjudication of their rights. See §§ 39.809,
784.046(6)(c), 784.0485(4), Fla. Stat. (2023). But under the current
judicial waiver provisions of section 390.01114, law-abiding
parents have no statutory right to even be notified that their minor
daughter seeks to terminate her pregnancy, much less to be heard
in the courtroom. Thus, this judicial waiver statute violates the
parents’ fundamental rights to fulfill their duties and to care for
their children under the U.S. Constitution and long-standing U.S.
Supreme Court precedent.

In this case, the violation of the rights of the minor’s parents

is even more egregious, as it is likely in many cases. The
boyfriend’s mother was notified of the pregnancy, but not the
child’s parents. Thus, unknown to her own parents, their daughter
has informed someone else’s parent, and sought “guidance” from
her.

Thus, I concur in the majority’s well-reasoned opinion

dismissing this case for lack of jurisdiction. But in my view, had
this Court possessed jurisdiction, it would be obligated to declare
section 390.01114, as currently applied to exclude parents from
any notice or opportunity to be heard, invalid under the
Fourteenth Amendment to the U.S. Constitution and the
fundamental principles that protect the parent-child bond and
undergird parents’ substantive and procedural due process rights
embodied in that Amendment to our supreme organic law.

_____________________________

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Candice K. Brower, Criminal Conflict and Civil Regional Counsel,
and Ronald Newlin, Assistant Regional Conflict Counsel,
Tallahassee, for Appellant.

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