In re L.D.F.

DISSENTING OPINION BY

CAVANAUGH, J.:

¶ 1 This Dissenting Opinion is written in order to give expression to my noted dissent to a panel Order of this court entered February 13, 2003. It is inspired in part by reason of the fact that there are no appellate expressions relating to the subject provisions of the Abortion Control Act, 18 Pa.C.S.A. §§ 3201-3220.

History

¶ 2 This matter came before a judge of the Common Pleas Court of Philadelphia County pursuant to a petition filed on behalf of L.D.F., a minor. The petition was filed under 18 Pa.C.S.A. § 3206(c) wherein, under certain circumstances, a minor may petition to receive court consent to an abortion. The court, thereafter, entered an order denying the petition. Since the matter was heard without a court reporter’s presence to provide a transcript, the exact language of the hearing is not available to this court. In addition, since the court did not enter a formal order, counsel for the petitioner prepared a statement in lieu of transcript and record which the *719court filed and approved under date of 2/10/03. In that statement, the court added, in handwriting, her reasons for refusal to sign the consent order, to wit, “because of the late state of the pregnancy” and affixed her initials thereto. At the hearing before the trial court, there was no finding by the court as to the maturity of L.D.F. Nevertheless, the majority has inferred that L.D.F. was sufficiently mature to consent on her own to the abortion.

Statutory Provisions

¶ 3 The judicial obligations under § 3206(c) are not clear. On the one hand, it can be read as a provision which requires the court to determine if the child is sufficiently mature to give informed consent to an abortion and, thereafter, obliges the court, in the role of loco parentis, to enter an order authorizing or refusing the abortion.

¶ 4 On the other hand, the provision may be read as simply providing that the court should determine whether or not the child is sufficiently mature to make her own decision. The majority has obviously read this provision in the latter sense since it, on its own, makes a fact finding that L.D.F. is sufficiently mature to consent to the abortion and, thereafter, gratuitously enters an order by this court authorizing the abortion. If the majority’s interpretation of subsection (c) is correct, it does two things which are, in my opinion, incorrect under the law. First, it infers that the trial court found maturity when there' is no evidence whatsoever upon which to base this inference. Secondly, the majority enters an authorizing order in the face of denial by the trial court of such an order and under circumstances where there is no provision for the entry of an order by an appeals court since we are only reviewing the actions of a trial court.5

¶ 5 Rather, I would read the trial court’s action as having been pursuant to § 3206(d) which provides that the court may determine that the child is not mature and capable of giving informed consent and further determines that the abortion would not be in her best interests. I would, therefore, affirm the denial of the petition to approve the abortion.

Prudential Considerations

¶ 6 Several comments concerning these procedures are pertinent. First, it is reasonable that there would not be a transcript of the trial court proceedings nor a detailed, reasoned court order prepared by the trial court. These jurisdictional prudential efficacies are dictated by the confidentiality and obvious temporal features of such proceedings.

¶ 7 Secondly, our panel discussed the possibility of remanding the matter to the trial court for an explication of her findings and reasons, but we were told by the child’s attorney at the hearing on 2/13/03, that the final day for an order permitting the achievement of an abortion in this case was 2/14/03. Under the circumstances, obviously a remand to the trial court was not feasible.

¶ 8 Thirdly, there is nothing in the statute or the rule of court, Pa.R.A.P. 3801-3807, which provides for a standard of review. No one has suggested that the function of the appeals court in this setting is to provide a de novo hearing and determination. Cf. In re Petition of Anonymous 2, 253 Neb. 485, 570 N.W.2d 836 *720(1997) (holding that under Nebraska statute, appellate review is de novo). Since the matter is reviewed under traditional appellate principles, I have considered the matter under the least restrictive doctrine, ie., abuse of discretion. Compare Ex parte Anonymous, 806 So.2d 1269 (Ala.2001) (finding of fact not to be set aside unless clearly erroneous) and In re Jane Doe 2, 19 S.W.3d 278 (Tex.2000) (appellate review of trial court’s “best interests” determination is pursuant to abuse of discretion standard).

¶ 9 In my opinion, for the above stated reasons, the majority has acted gratuitously and without legal foundation and the trial court did not abuse its discretion.

. The majority grievously errs by adopting the period of 24 weeks gestation as the standard for permission to abort. However, this stage of gestation is the standard for determination of felonious misconduct — not a standard for reasonableness under all the circumstances. Under the deadlines established by the abortion provider in this case, it is obvious that they were wary of possible exposure to criminal sanctions.