Opening court records to adoptees and first parents

Oregon Capitol Building, Salem

While legislators elsewhere debate whether to allow adoptees access to their original birth certificates (OBC), Oregon is moving ahead with legislation which would allow adult adoptees to learn the details of their adoption and make it easier for first parents to learn the adoptive name of their child and the names of the adoptive parents.

This is a first in the country. While Washington State, New York, Ohio consider bills to give adoptees their original birth certificates, this goes farther in giving both adoptees and birth parents information about one of the most pivotal and life-altering events, information that the state previously deemed off-limits, even though it was about one's self. 

The bill allows adult adoptees at age eighteen to have access to their entire court file (other than the home study) at the courthouse. All they have to do is ask for their file. First mothers--except those who lost their children though state action--also will be able to see portions of the court file, unless a judge decides against it. Fathers who gave consent to the adoption, and thus whose names are in the file, would have the same right of access. Both parents need a court order to access the permitted portions of the file, but if this becomes law, a judge would have to show "good cause" to deny them.

The bill (SB 623) passed out of the Senate Judiciary Committee last Thursday (4/11) and now goes to the Senate for a vote. The Chair of the Judiciary Committee,Sen. Floyd Prozanski, revealed he is adopted, and had been able to find his original family. "I have been fortunate to meet portions of my biological family, which is very good" he told the surprised audience at the hearing. Since there appears to be no opposition, the chances are good that SB 623 will become law and be effective by the fall.

As it stands now throughout the country, all court files relating to an adoption are sealed. No one can see them without a court order. ("Court" is a fancy word for judge.) To get a court order, individuals must show "good cause;" simply wanting to know details about your adoption, or the names of your child's adoptive parents, typically has not been considered "good cause." While a few judges in some states have been known to give the names of the parents on the birth certificate to anyone who asks, this is rare indeed.

WHAT'S IN THE COURT FILES?
In a typical court file relating to an adoption, one would find all the legal documents, and supporting materials, which transfer legal parenthood to the adoptive parent, making the child "as if born to them," including:

• Petition for Adoption. Contains the names and marital status of the prospective adoption parents, the name, sex, and date of birth of the child to be adopted, and the name and marital status of the child's mother, and, if his consent is required, the name of.the child's father.
• Consents: Documents signed by the mother, the father if required, and the adoption agency, if any.
• Home Study. An assessment by the child welfare agency or a licensed adoption agency of the suitability of the prospective adoptive parents.
• Placement Report. A recommendation by the child welfare agency or a licensed adoption agency on whether the court should allow the adoption. It may include the child's and the child's first parents social, medical, and genetic history.
• Continuing Contact (open adoption) Agreement. If any.
• Itemized Accounting. Any monies paid or estimated to be paid by the by the prospective adoptive parents for fees and costs and expenses relating to the adoption, including legal, medical, living and travel expenses.
• Adoption Summary. The names, addresses, and telephone numbers of the prospective adoptive parents and the child's mother, and if applicable, the child's father.
• Medical histories. Of the child and his first parents.
• Report for the Vital Statistics Registrar.



Jane

• Adoption Decree. The court order granting the petition for adoption, making the adoptive parents the legal parents, and changing the child's name to the name chosen by the adoptive parents.

FIRST MOTHERS WOULD HAVE RIGHTS TOO!
First parents would have access without court action to any documents they signed which would include the consent and the continuing contact agreement. But the law goes farther, first mothers--other than those whose children were taken from them by the state--would be able to petition the court for access to the adoption petition, the placement report, the accounting, and the decree, documents that contain the new names of their children. With this legislation, the files must be released unless a judge can find good cause for not allowing it. In other words, first parents would not have to show good cause to see the documents. Petitioning the court for access to the file should be a simple procedure which a first parent could do without an attorney. The only cost would be a $240 filing fee.

However, first parents who lost their children through state action would have to to convince a judge they did have show good to obtain the file and, before the judge released the file, identifying information would be redacted. This safeguard was added because of concerns by child welfare authorities that these parents might seek to harm their now adult child. The legislation would also give adoptive parents, their attorneys, judges and court staff and child welfare agency staff unlimited access to all the records.

Jane & Lorraine signed this ad with more than 500 first mothers

HOW DID WE GET HERE?
Several years ago, the Oregon Supreme Court which oversees the court system, as part of the effort to move to electronic record keeping, asked the Oregon Law Commission, to recommend whether adoption records should continue to be sealed.

The Oregon Law Commission accepted the task and appointed a work group to develop legislation dealing with this. I asked to be a member of this group, which included representatives from adoption agencies, adoption attorneys, state child welfare administrators, court and legislative staff, adoptees, first parents, and adoptive parents, and was accepted. Through a series of meetings under the excellent leadership of attorney John DiLorenzo (who volunteered to head the work group because he had no background in or connection with adoption), we found common ground. With the able assistance of the commission's general counsel, Wendy Johnson, we produced a report and a draft bill. 

The path to opening court records was paved by Ballot Measure 58 passed by the voters in 1998. This ground-breaking legislation--the only one of its kind to become law by a ballot measure--allows Oregon-born adult adoptees to obtain copies of their OBCs. Once Measure 58 cracked open the gates, it became apparent that there was no good reason  for denying adoptees their court records, or for keeping first mothers from learning what became of their child. It's an overdue recognition that contact between an adoptee and his first family is kind of like sex, as long as it is between consenting adults, it's nobody's business.

Not since 1980 have first mothers ever been part of the reform of unsealed records. In 1980 after holding numerous hearings around the country, in which Lorraine, Florence Fisher, B.J. Lifton, and others participated, the U.S. Department of Health, Education and Welfare included these words in a proposed Model Adoption Act in 1980:  

 "There can be no legally protected interest in keeping one’s identity secret from one’s biological offspring; parents and child are considered co-owners of the information regarding the event of birth….The birth parents’ interest in reputation is not alone deserving of constitutional protection.”

That was more than three decades ago. At the time this omnibus piece of legislation first reached Congress, it included a provision that allowed first mothers the right to know what happened to their children, including their new identities. Lee Campbell, founder of Concerned United Birthparents, was one of the people on the commission that wrote the legislation, and we credit her for being the force that included birth mother rights. However, provisions that allowed either adoptee or first mother knowledge of the other was defeated in Congress, a move led by adoptive father, Sen. John Tower of Texas with the help of the National Council for Adoption.

However, it appears we indeed have come a long way, at least in Oregon. In other states, not so much. Our best hope for reform this year is in Washington, Ohio and New York, where there is an active group of individuals working on legislation. Just as we encourage any reader from those states to become involved--every single person makes a difference--so do we urge all Oregon readers to contact their legislators and ask them to support SB 623. You can find the name and contact information by clicking on Find Your Legislator.--jane

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SB 623
                           
FROM FMF
Why adoption reform frustrates me
OBC-access bill with 'birth mother' veto may become law

Birthmothers: Women Who Have Relinquished Babies for Adoption Tell Their Stories For a book of several first mother's stories that was ahead of its time--1993--this book stands alone. Author Merry Bloch Jones has no connection to the subject, as far as I know, but writes about us with compassion and clarity. It may be of more use to adoptees who wonder what it was like "back then" when their mothers relinquished them. This is the precursor to The Girls Who Went Away, and deserves its recognition as such. Jones gets it. --lorraine


Family Matters: Secrecy and Disclosure in the History of Adoption An excellent history of the sealed record in American and the movement to open them to date. Mining a vast range of sources (including for the first time confidential case records of a twentieth-century adoption agency), Carp makes a startling discovery: openness, not secrecy, has been the norm in adoption for most of our history; sealed records were a post-World War II aberration, resulting from the convergence of several unusual cultural, demographic, and social trends. 

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