Oregon to allow first mothers easier access to child's adoption records

Governor John Kitzhaber

Mothers of children they relinquished for adoption will have an easier time learning their lost child's new name and the names of his adoptive parents in Oregon after January of next year, representing a sea change in attitudes toward birth mothers. This law, signed by Gov. John Kitzhaber earlier this month, requires a judge to allow access to much of the court records of their children's adoptions unless there's a good reason not to. This is a switch from current law, where judges deny access unless they find a compelling reason for it. This will be the first time in the country where the legal presumption favors a birth mother's access to the information, rather than deny it.

The new law, SB 623, also allows Oregon adoptees 18 and over to access their court adoption files--except the home study of the adoptive parents--just by going to the courthouse and asking for them. No court order will be required. Additionally the new law allows adoptive parents to access all their child's court adoption records without a court order.

YOUR REASON FOR WANTING TO KNOW YOUR CHILD, MADAM?
As it stands now, a judge has a great deal of leeway to decide what is a good reason to release court information to the mother, who must go before a judge and state her reasons. The trouble is, the law does not state what a good reason is--one judge might consider a mother's intent to tell her child about a family history of breast cancer to be a good reason; another given the same reason might refuse to open the file and suggest the mother contact the adoption agency and ask it to pass along the breast cancer information. Simply wanting to know her child's name so she can find him and tell him she loves him and thinks about him every day is not a good reason. If it were, a great many files would already have been opened.

The new law says that once her child turns 18, mothers may file a motion to see her child's file and "the court shall grant the motion except for good cause." This means that the judge can deny her request only if he has a good reason. Since it's unlikely anyone will come to court to oppose the mother's request, it's unlikely the judge will have good cause to refuse the mothers' request, unless something in the file indicates that she might endanger the child. Although legal advice may be helpful, a lawyer should not be necessary to go through the process, and thus even non-wealthy women will be able to learn their children's names. Without a lawyer, the only cost would be a filing fee of $240, plus reasonable charges for having copies made.

Additionally, mothers can get copies of all documents they signed without a court order. However, the signatures any other person on the document will be redacted, that is, blotted out.

These new rules go into effect January 1. Court administrators are now developing procedures and training staff to implement the new law.

WHAT MOTHERS (AND FATHERS) WILL GET
Upon obtaining a court order, the following documents will be available to mothers--and fathers if their consent was required for the adoption:

• 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 to adoption. The documents signed by the mother, the father (if required), and the adoption agency, if any.
• 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 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.

Only the home study and documents with the addresses of the adoptive parents (which would be at the time of the adoption) will remain sealed. The new law does not apply to parents whose children were taken from them by the state; for them, the old law still applies and they can only see the file if they convince a judge with good cause. Additionally, the names of all other people named in the file besides the mother (or father, as indicated above) will be redacted.

HOW THE NEW LAW CAME ABOUT

Jane

Several years ago, the Oregon Supreme Court, in an effort to move to electronic record keeping, asked the Oregon Law Commission to prepare a report on whether adoption records should continue to be sealed. The Legislature created the commission, under the auspices of the Willamette University School of Law, to study and develop legislation on complex legal issues. The commission appointed a work group and I applied and was accepted as a member of that work group, along with representatives from adoption agencies, adoption attorneys, state child welfare administrators, court and legislative staff, adoptees, other first parents, and adoptive parents. Attorney John DiLorenzo volunteered to head the work group because he had no background in or connection with adoption, and under his excellent leadership we found common ground. Adult adoptees born in Oregon had had the right to access their original birth certificates since 2000 thanks to Ballot Measure 58 passed by the voters. The logical next step was to allow access to the court file. Wendy Johnson, the commission's general counsel, gave us able assistance as we wrote our  report and drafted SB 623. Though we came to adoption from many different backgrounds, we were able to work together without rancor or the divisiveness that often clouds adoption. Everyone who participated worked cooperatively in drafting this legislation.

SB 623 was heard by the Senate Judiciary Committee, which is coincidentally chaired by an adoptee, Sen. Floyd Prozanski. After Judiciary approved the bill, it was on a roll, sailing through the Senate, a House Committee and the House of Representatives, and then on to the Governor for his signature, which came on June 6.

Though I am pleased to have played a part in this new new legislation, and hope that it augers a change elsewhere in the country, please keep in mind that this is my understanding of it, and not a legal opinion. As we go along and procedures are developed, I'll update this information.--Jane
_________________________
In other news, we have heard nothing about the Adoptee Rights Bill in New York. The session will be over on Thursday.  Doesn't look good again this year. If you are thinking of calling or emailing the governor or a legislator, do so immediately. See sidebar on right for contact information.

SB 623
The Oregon Law Commission
Adoption Work Group

FROM FMF:
Opening court records to adoptees and first parents
BOOKS
Family Matters: Secrecy and Disclosure in the History of Adoption  An excellent history of sealed records in this country and the movement to unseal them. FMF consults it often.

"Amid recent controversies over sealed adoption records and open adoption, it is ever more apparent that secrecy and disclosure are the defining issues in American adoptions--and these are also the central concerns of E. Wayne Carp's book. 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." --Amazon