Matter of B.F.

[*1] Matter of B.F. 2009 NY Slip Op 52155(U) [25 Misc 3d 1216(A)] Decided on October 16, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 16, 2009
Sur Ct, Nassau County

In the Matter of the Application of B.F., to unseal adoption records.



39



Thomas J. Hall, Esq.

57 Beach Street

Staten Island, NY 10304-0002

John B. Riordan, J.

Before the court is the application to unseal an adoption file and obtain a certified copy of the order of adoption. The application is made by counsel on behalf of B. F., the petitioner in a proceeding for letters of administration in the estate of A. H.; that proceeding is currently pending in Surrogate's Court, Queens County. It is alleged that a sibling of the decedent named Rose was adopted out of the family in the late 1930's or early 1940's and that the adoption took place in this court. Counsel avers that the information is necessary to determine whether Rose is a distributee of the decedent. Counsel's application contains Rose's name as well as the name of the adoptive father of the child.

In New York State, the sealing of adoption records has been mandated for more than 60 years, although courts had the discretionary power to seal these records even before then (Matter of Linda F.M., 52 NY2d 236, 239 [1981]; appeal dismissed 454 US 806 [1981]). Currently, adoption records are sealed pursuant to Domestic Relations Law §114, to protect and insure confidentiality which is "vital to the adoption process" (Matter of Hayden, 106 Misc 2d 849 [Sup Ct, New York County 1981]). As expressed by the Court of Appeals, the purpose is to provide anonymity to the natural parents, enable the adoptive parents to form a close bond with their adopted child, protect the adopted child from possibly disturbing information that might be found in his records, and allow the state to foster an orderly and supervised adoption system (Matter of Linda F.M., 52 NY2d 236, 239 [1981]; appeal dismissed 454 US 806 [1981] [internal citations omitted]). There have been challenges to the power of New York State to seal adoption records, but the courts have determined that these statutes are not in violation of the equal protection clause of the 14th Amendment and are constitutional (Matter of Linda F.M., 52 NY2d 236 [1981]; appeal dismissed 454 US 806 [1981]; Matter of Romano, 109 Misc 2d 99 [Sur Ct, New York County 1981]).

At the same time, the courts and the Legislature have recognized that circumstances may exist in which it is vital that an adopted child be provided with information regarding his background (Matter of Peter B., 12 Misc 3d 1184A [Sur Ct, Nassau County 2006]). When [*2]serious health issues arise, an adopted child or his adoptive parents may seek the medical history of the child's biological family pursuant to Domestic Relations Law §114(4). This statute permits interested parties seeking medical information to establish a prima facie case of good cause (see e.g. Matter of Peter B., 12 Misc 3d 1184A [Sur Ct, Nassau County 2006]). It is also possible to petition the court for access to adoption records for other reasons pursuant to Domestic Relations Law §114(2). This section provides that adoption records may be unsealed upon a showing of "good cause." It further directs that there must be "due notice to the adoptive parents and to such additional persons as the court may direct." While it is unusual for adoption records to be unsealed for a non-medical reason, exceptions to the medical requirement are rare but do occur occasionally (see Matter of Victor M.I.I., 23 Misc 3d 1103A [Sur Ct, Nassau County 2009][court record unsealed to permit petitioner to prove Hungarian lineage to establish Hungarian citizenship]). The courts and the Legislature have attempted to strike a balance between the state's interest in maintaining sealed adoption records and the sometimes conflicting interests of all parties to an adoption, as further weighed against the justification underlying each particular request to unseal the records (15 Buffalo Journal Public Interest Law 49, 72 [1996]).

In weighing the opposing interests, courts may deny an adoptee's request to unseal his adoption record for lack of good cause. In a 2006 decision, the court denied adoptee's application where it determined that the request was based upon an "adoptee's general curiosity about her ancestry and background" (Matter of Adoption of M.F., NYLJ, Sept. 9, 2006, at 46, col 5 [Sur Ct, Kings County]). Similarly, access to records was denied where petitioner wanted to give his children and grandchildren the opportunity to find out about their father's heritage (Matter of Lewis, NYLJ, Apr. 20, 2007, at 32, col 1 [Sur Ct, Kings County]). "By its very nature, good cause admits of no universal, black-letter definition" (Matter of Linda F.M., 52 NY2d 236, 240 [1981]; appeal dismissed 454 US 806 [1981]).The facts presented to the court on the application are highly unusual in that there are virtually no competing interests to weigh against petitioner's application. Counsel's application indicates that Rose is alive and that her daughter has been appointed her guardian pursuant to Article 81 of the mental hygiene law. Counsel's attempts to obtain proof of the adoption from the guardian's attorney have been unsuccessful. As to the interests of both the biological and adoptive parents, since the adoptive child was born in 1927, the court may indulge the presumption that both sets of parents are deceased (Young v Shulenberg, 165 NY 385 [1901]). The state's interest in maintaining confidentiality as part of a viable system of adoption is also not a factor in this case, as there is no information contained in the requested document which petitioner does not already possess, and petitioner is not requesting unfettered access to the entire adoption file. It is not identifying information which is sought, that is already in applicant's possession; what is sought is a certified document necessary to establish the heirs at law of the decedent A. H.

"Whether [good cause] exists, and the extent of disclosure that is appropriate, must remain for the courts to decide on the facts of each case" (Matter of Linda F.M., 52 NY2d 236, 240 [1981]; appeal dismissed 454 US 806 [1981]). Under these circumstances, the court finds that petitioner has demonstrated good cause, and that the due notice requirement of Domestic Relations Law §114(2) may be dispensed with, on the grounds that both the biological and adoptive parents may be presumed to be deceased. [*3]

Upon paying the fee to the court for a certified copy, petitioner will be provided with the requested certified copy of the order of adoption. This constitutes the decision and order of the court.

Dated: October 16, 2009

John B. Riordan

Judge of the

Surrogate's Court