Matter of Jonna R.D.

[*1] Matter of Jonna R.D. 2006 NY Slip Op 50626(U) [11 Misc 3d 1079(A)] Decided on April 14, 2006 Sur Ct, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 14, 2006
Sur Ct, Nassau County

In the Matter of the Application of JONNA R.D.,



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Kroll, Moss & Kroll, LLP (Attorneys for Petitioner)

400 Garden City Plaza

Garden City, NY 11530

John B. Riordan, J.

This is an application by a now-adult adopted child to unseal adoption records, based upon alleged medical necessity concerning her three-year old son.. The application is supported by letters submitted by two physicians practicing in the state of Florida, both of which reveal that there is a strong concern that the adopted child's son suffers from Huntington's chorea. The adoptive parents are both deceased.

Domestic Relations Law §114 requires that adoption records be sealed. The purpose is to protect and insure confidentiality which is "vital to the adoption process" (Matter of Hayden, 106 Misc 2d 849 [1981]). The confidential nature of the adoption process serves many purposes to foster a stable and secure home for the adoptive child, to ensure that the natural parents will be able to start a new life without fear of the past intruding on their ability to do so, to allow the adoptive parents to go on without fear that the natural parents will intrude into their lives, and to shield the adoptive child from possibly disturbing facts regarding her birth or background

(Golan v Louise Wise Services, 69 NY2d 343 [1987]; Matter of Walker, 64 NY2d 354 [1985]; Matter of Linda F.M., 52 NY2d 236 [1981]; appeal dismissed 454 US 806 [1981]; Matter of Hayden, 106 Misc 2d 849 [1981]). The statutory sealing requirements have been held to be constitutional and do not violate the adoptive child's 14th amendment right to equal protection (Matter of Linda F.M., 52 NY2d 236 [1981]; appeal dismissed 454 US 806 [1981]; Matter of Romano, 109 Misc 2d 99 [1981]).

Despite the strong policy in favor of confidentiality, the courts and Legislature have recognized that, under certain circumstances, an adoptive child may need information concerning his or her medical background (Matter of Chattman, 57 AD2d 618 [1977]; Juman v Louise Wise Services, 159 Misc 2d 314 [1994], affd 211 AD2d 446 [1995]; Matter of Harrington, NYLJ, Mar. 31, 1993, at 25). Nevertheless, "[a] rule which automatically gave full disclosure to any adopted person confronted with a medical problem with some genetic implications would swallow New York's strong policy against disclosure. . ." (Golan v Louise Wise Services,

69 NY2d 343, 349 [1987]). Thus, the courts and the Legislature have attempted to strike a balance between the conflicting interests of the biological parents to maintain anonymity and the interests of adopted children and their adoptive parents in having access to medical information (Domestic Relations Law §114; see Matter of Marino, 291 AD2d 849 [2002]). The Legislature, recognizing the adoptive child's need for such information, in 1983 enacted Social Services Law §373-a which requires certain information, including information on medical histories, to be provided by the biological parents. [*2]

Based upon the same rationale, Domestic Relations Law §114(2) provides that adoption records may be unsealed upon a showing of "good cause." A prima facie case of good cause on medical grounds may be established under Domestic Relations Law §114(4). Domestic Relations Law §114(4) provides as follows:

"4. Good cause for disclosure or access to an inspection of sealed adoption records and orders and any index thereof, hereinafter, the adoption records,' under this section may be established on medical grounds as provided herein. Certification from a physician licensed to practice medicine in the State of New York that relief under this subdivision is required to address a serious physical or mental illness shall be prima facie evidence of good cause."

The certification must also identify the information required to address such illness. Moreover, in order to maintain the anonymity of the biological parents, Domestic Relations Law §114(4) requires the appointment of a guardian ad litem to review the records or, if the records are insufficient, to contact the biological parents.

Here, the affidavits submitted are from two Florida physicians. According to the affidavit of Dr. K, "[t]here is a strong concern" that the adopted child's son suffers from Huntington's chorea "and they desperately need information regarding the birth parents. . .." In addition, Dr. H avers that the adopted child's son is being seen "for. . . tremors, speech and language delay, myoclonic jerks, sleep disturbance, hypotonia and behavioral issues." Dr. H concludes that having access to the adopted child's "biological family history will benefit. . . [the adopted child's son] by determining possible genetic disorders, prognoses and treatment plan."

Here, the affidavits do not meet the specific criteria set forth in Domestic Relations Law §114(4). Neither affidavit is from a physician licensed to practice medicine in New York State. Although the applicant has failed to provide the type of certification to establish prima facie "good cause" under Domestic Relations Law §114(4), she, has, nevertheless, established good cause under Domestic Relations Law §114(2) (see Matter of Rubin, NYLJ, Mar. 26, 1999, at 31). The doctors' affidavits confirm that the medical records of the applicant's biological parents may be helpful in treating the applicant's son's condition and providing a course of treatment. Accordingly, the court will appoint a guardian ad litem to represent the interests of the biological parents. The applicant has agreed in writing to pay the reasonable fees and expenses of the guardian ad litem.

Once appointed, the guardian ad litem shall examine the adoption records to ascertain if the medical information the adoptive child seeks is contained therein. The applicant shall not be permitted to personally inspect the records at this time. The guardian ad litem shall preserve the anonymity of the biological parents. If the guardian ad litem discovers that the records are insufficient for the purpose of obtaining medical information, even though prima facie cause has not been made under Domestic Relations Law §114(4), the guardian ad litem shall follow the procedure set forth in Domestic Relations Law §114(4) (see Matter of Rubin, NYLJ, Mar. 26, 1999, at 31). The guardian ad litem shall undertake further efforts to locate and contact the biological parents and offer them the option of disclosing the medical information sought by the [*3]applicant, as well as the option of granting consent to examine their own medical records, or to contact the applicant directly.

The applicant shall furnish the court with death certificates for the adoptive parents.

This constitutes the decision and order of the court.

Dated: April 14, 2006

JOHN B. RIORDAN

Judge of the

Surrogate's Court

The appearance of counsel is as follows: