In re Margaret Susan P.
Annotate this Case
In re Margaret Susan P. (98-145); 169 Vt. 252; 733 A.2d 38
[Filed 14-May-1999]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 98-145
In re Margaret Susan P. Supreme Court
On Appeal from
Chittenden Superior Court
January Term, 1999
Linda Levitt, J.
Michael S. Gawne of Brown, Cahill, Gawne & Miller, P.C., St. Albans, for
Appellant.
Kurt M. Hughes of Murdoch & Hughes, Burlington, for Appellee.
PRESENT: Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.
DOOLEY, J. This case requires us to define the rights of access of an
adult adoptee to adoption records under the recently-enacted Vermont
Adoption Act, Title 15A of Vermont Statutes Annotated. The context of
our decision is a request by an adult adoptee to examine and photocopy the
file on her relinquishment and adoption held by the private adoption agency
that placed her with an adoptive family. Both the Chittenden Probate
Court and the Chittenden Superior Court denied this request, holding the
adoptee was entitled only to a summary of the information in the file. We
conclude that the probate or superior court can order the relief the
adoptee requests if it finds that the balance of statutory factors supports
disclosure. We also conclude that the summary provided to the adoptee in
this case was insufficient to comply with
the applicable statute. We reverse and remand for further proceedings
consistent with this opinion.
Plaintiff Daphne Gawne was born on March 25, 1951 in Burlington while
her birth mother was a resident at the Elizabeth Lund Home, now the
defendant, Lund Family Center. Plaintiff's birth mother ultimately
relinquished her to the Elizabeth Lund Home, which then placed her with
Blaise and Katherine Kent. The Chittenden Probate Court formalized the
Kents' adoption of plaintiff on May 31, 1952.
Plaintiff first began to seek information related to her adoption in
the 1980's. Since the deaths of her adoptive mother in 1987 and her
adoptive father in 1990, she has attempted to gain information regarding
her adoption from both defendant and the probate court. In June 1995,
plaintiff visited defendant and requested to inspect or obtain a copy of
all files in its possession relating to her or her adoption. Defendant
refused this request. Plaintiff filed a petition for disclosure of
information with the Chittenden Probate Court in August of 1997 pursuant to
the relevant provisions of the Vermont Adoption Act, 15A V.S.A. §§
6-104(e), 6-112(a). Plaintiff's birth mother consented to disclosure of
the information plaintiff requested. Her putative father consented to the
disclosure as long as identifying information pertaining to him was
deleted. The court denied the petition, although it did order defendant
to provide a more detailed summary of the records in its possession. The
superior court affirmed the probate court decision by granting summary
judgment for defendant.
This is an unusual case. By June 1997, when the probate court
released its file to her, plaintiff was aware of virtually all information
about her birth family and her adoption. She knew the identity and
location of her birth mother and that of the man her birth mother
identified as her
birth father. She had received extensive information from defendant about
her adoption. Defendant drew the line, however, at giving plaintiff
complete access to its file on her and her adoption.
It is also an unusual case because the information already disclosed
to plaintiff shows serious irregularities in the placement of plaintiff
with her adoptive parents and in the steps to the finalization of the
adoption. Because of these irregularities, the Elizabeth Lund Home opposed
the adoption when it finally came before the Chittenden Probate Court in
1952. Its main reasons were that: (1) the placement with the adoptive
parents was based on friendship with Elizabeth Lund Home staff and not on
an objective home study; (2) because of their age and other factors, the
adoptive parents were not eligible to adopt babies placed by the home under
the existing policies of the home; and (3) the adoptive parents moved to
another state shortly after the placement, and that state refused to
supervise the placement. After taking evidence, the probate court
approved the adoption over the objection of the Elizabeth Lund Home and the
Commissioner of the Vermont Department of Social Welfare.
We point out the unusual nature of the dispute to emphasize what is at
issue in this appeal. Although plaintiff may want to learn more about
herself and her birth parents, her main interest is in knowing how
defendant and its employees acted in taking the relinquishment from her
birth mother and discharging its obligations as custodian up until the
time she was adopted. We are, therefore, not dealing primarily with the
privacy interests of birth parents, adoptees or adoptive parents.
Instead, we are considering the privacy interests of a private adoption
agency.
On appeal, plaintiff makes a number of claims about the merits of the
superior court decision and about the procedure the court employed in
reaching its decision. We discuss the
merits below. Before we reach the merits, we consider one other appeal
issue - whether Judge Linda Levitt should have been disqualified from
hearing the case -- because it goes to the integrity of the adjudicatory
process.
I. Motion to Disqualify
Plaintiff moved to disqualify Judge Linda Levitt on February 15, 1998,
about a month after defendant filed a motion for summary judgment in
Chittenden Superior Court. Her primary grounds were that Judge Levitt is
an adoptive mother who "might hold positions typical of adoptive mothers
and cannot easily set aside a potential predisposition against disclosure."
Plaintiff also cited that when defendant appealed to Chittenden Superior
Court, defendant failed to appear and plaintiff moved for a default
judgment. Rather than acting on the motion, Judge Levitt directed the
clerk to notify the attorney for defendant of the pendency of the appeal
and to send the attorney a copy of the notice of appeal and statement of
questions. Once defendant appeared in the action through counsel, Judge
Levitt denied the motion for a default judgment.
The motion to disqualify was referred to the Administrative Judge for
Trial Courts who designated Judge Dean Pineles to rule on it. See
V.R.C.P. 40(e)(3) (motions to disqualify are decided by Administrative
Judge or his designee). Judge Pineles denied the motion, ruling that
plaintiff's concerns were "speculative in nature" and that plaintiff failed
to make a clear and affirmative showing of bias or prejudice. On appeal,
plaintiff makes the same arguments she made to the administrative judge.
Plaintiff's motion to disqualify is based on Canon 3E of the Code of
Judicial Conduct, which requires a judge to disqualify herself "in a
proceeding in which the judge's impartiality might reasonably be
questioned." See A.O. 10, Canon 3E(1). Plaintiff argues that because
studies show that adoptive parents are often hostile to an adoptee
acquiring information about birth parents or the adoption, Judge Levitt
should have disqualified herself from this dispute about an adoptee's
access to adoption information.
We addressed the standard of review for disqualification decisions in
State v. Putnam, 164 Vt. 558, 560-61, 675 A.2d 422, 423-424 (1996). We
noted that a judge subject to a "disqualification motion is accorded a
presumption of honesty and integrity." Id. at 561, 675 A.2d at 424. We
also held that the administrative judge has discretion in ruling on
disqualification motions and will be reversed only if the judge has abused
his discretion such that no reasonable basis exists for the decision. See
id.
Two themes go through plaintiff's motion: (1) that because some
adoptive parents are hostile to access to information, the impartiality of
an adoptive parent judge might reasonably be questioned; and (2) because
Judge Levitt made some erroneous rulings that prejudiced plaintiff, her
impartiality can be questioned. Plaintiff's first theme is that we should
impose a per se disqualification rule for adoptive parents with respect to
adoptee actions for adoption information. We noted in Putnam that 'per se'
rules are generally inappropriate in judicial disqualification cases,
unless explicitly recognized by provisions of the Code of Judicial Conduct.
See id. The Code contains no explicit recognition of the per se rule
plaintiff seeks here.
Such a per se rule would be particularly inappropriate in a case like
this. Judges may be public officials, but they are also private citizens
of all genders, races and religions, and with diverse family
circumstances. We do not believe that personal and family circumstances
are appropriate considerations on which to presume bias or partiality.
See, e.g., United States v. Alabama, 828 F.2d 1532, 1542 (11th Cir. 1987)
(decided under identical disqualification language
in 28 U.S.C. 455(a)). Plaintiff offered no evidence that Judge Levitt's
status as an adoptive parent made her partial. We see no abuse of
discretion in the denial of the motion to disqualify because of Judge
Levitt's status as an adoptive parent.
Plaintiff's second theme is equally unpersuasive. Plaintiff claims
Judge Levitt should have been disqualified because of her judicial actions
in this case. We held in State v. Streich, 163 Vt. 331, 354, 658 A.2d 38,
53 (1995) that "rulings adverse to [a party], even if erroneous, do not by
themselves demonstrate that the judge was biased. It is incumbent on [the
party seeking disqualification] to make showing of improper motivation by
the rulings." Plaintiff has made no showing of improper motivation behind
the disputed rulings here. Plaintiff's remedy, if any, is to appeal, not
to disqualify the judge. We find no abuse of discretion in the
administrative judge's decision to deny the motion to disqualify Judge
Levitt.
II. Merits
We now turn to the merits of the case. We are reviewing an award of
summary judgement. In doing so, we use the same standard as the superior
court and will affirm the summary judgment if "there are no genuine issues
of material fact and the moving party is entitled to judgment as a matter
of law." Granger v. Town of Woodford, 167 Vt. 610, 611, 708 A.2d 1345,
1346 (1998) (mem.). Because this case raises no genuine issues as to
material fact relating to the petition for disclosure, this case turns
entirely on issues of law.
A. The Vermont Adoption Act
In order to understand the claims in this case and their disposition
by the probate and superior courts, it is helpful to first examine the
statutory scheme governing adoption and disclosure of adoption-related
information in Vermont. In 1996, the Legislature enacted a new,
comprehensive Adoption Act, modifying this state's policy on access to
adoption records. See 15A V.S.A. §§ 1-101 to 7-105. This is the first
time we have been called upon to construe the Act.
The provisions governing the disclosure of adoption records appear in
Article 6 of the statute. See id. §§ 6-101 to 6-112. Specifically, the
article sets out policies governing the confidentiality, retention, and
release of information contained in adoption records. As in the prior
law, the basic policy is that adoption records are confidential:
(a) All records on file with the court or in the possession of an
agency, the department of health, the registry or other provider of
professional services in connection with an adoption are confidential
and may not be inspected except as provided in this title.
. . .
(d) All records on file with the court or agency shall be retained
permanently and sealed for 99 years after the date of the adoptee's
birth. Sealed records and indices are not open to inspection by any
person except as provided in this title.
15A V.S.A. § 6-102 (a), (d). There are, however, major exceptions to this
policy when access to records is sought by an adoptee who has attained the
age of eighteen years.
The extent of access for adult adoptees depends upon whether the
person seeks "nonidentifying information" or "identifying information."
"Identifying information" is defined as information that "might establish
the current whereabouts of an adoptee, the adoptee's former parent or
other family member, including full name, date and place of birth, and last
known address." Id. § 1-101(10). The term "nonidentifying information"
is not defined.
Access is greatest for nonidentifying information. Section 6-104 (b)
provides:
Upon request by [an adult adoptee], the court that heard the
adoption petition, the agency that placed the adoptee for adoption,
or any other person who assisted in the adoption shall furnish a
detailed summary of any relevant report or information contained
in confidential reports in their possession about the adoptee, the
adoptee's former parents and the adoptee's genetic history,
including the information required by section 2-105 of this title.
This report shall exclude identifying information concerning an
individual who has not signed a waiver of confidentiality.
Section 2-105(a) requires a parent or agency placing a child for adoption
to provide to the prospective adopting parent a social and health history
of the child and a social and health history of the child's parents and
extended family. These histories are to contain only nonidentifying
information. See id. § 2-105(a).
To facilitate decisions on access to identifying information, the Act
establishes an adoption registry in the Vermont Department of Social and
Rehabilitation Services (SRS). The registry contains an index of the main
identifying information: (1) adoptee's name at birth and after adoption,
with date of birth; (2) names and addresses of former parents and adoptive
parents; (3) date and court in which a consent or relinquishment was
filed; (4) date and court in which the adoption petition was filed; (5)
any agency involved in the adoption; and (6) the date and nature of the
disposition of the petition. See id. § 6-103(a)(1). It also contains any
consents to the disclosure of identifying information and the information
specified in § 2-105, as described above. See id. § 6-103(a)(2), (3).
Adult adoptees and others may seek identifying information from the
registry. Until December 31, 1997, identifying information about an
adoptee's former parent may be disclosed only with consent of that parent.
See id. § 6-105(b). After December 31, 1997, the disclosure obligation
depends upon when the adoption was finalized. For those finalized prior to
July 1,
1986, disclosure requires consent. See id. § 6-105(b)(1). For later
adoptions, disclosure must be made without the former parent's consent
unless the parent has filed a request for nondisclosure. See id. §
6-105(b)(2). An adoptee who has access to identifying information may
obtain a copy of the adoptee's original birth certificate. See id. §
6-107(a).
For purposes of this opinion, we refer to sections 6-104, 6-105 and
6-107 as the disclosure sections of the Vermont Adoption Act because these
sections contain the Act's disclosure rights.
The Act contains two authorizations of court actions to obtain
disclosure of adoption information. The first authorizes a person "denied
access to nonidentifying information to which the individual is entitled"
to petition the probate court for relief. Id. § 6-104(e); see id. §
1-101(6) ("court" means probate court). The second more generally allows
a person denied nonidentifying information, or an adoptee denied
identifying information or a copy of a birth certificate, to file a
petition in the probate court to obtain the information being sought. See
id. § 6-112(a). In deciding whether to grant the petition, the court must
consider a number of factors, including "the reasons the information is
sought" and the "expressed needs of the adoptee including the emotional
and mental health needs of the adoptee." Id. § 6-112(b)(1), (5).
B. Proceedings Below
Next, we review the history of these proceedings, and the positions of
the parties, in relation to the statutory scheme. This proceeding began
in August 1997 with a request pursuant to 15A V.S.A. § 6-112 for the
Chittenden Probate Court to order defendant to provide plaintiff access to
all records in the agency's file of her adoption, after redaction of
identifying information with respect to plaintiff's birth father.
Plaintiff alleged that she was entitled to access pursuant to § 6-104(b),
but was denied access by defendant. She declined to state the purpose of
her
request, averring that it was impossible to do so without knowing the
contents of the records, but stated it was "possible" she was seeking
disclosure "for medical purposes; for filing a claim against individuals
participating in her adoption for wrongful adoption." At the time of this
petition, both of plaintiff's adoptive parents were dead, and plaintiff's
birth mother had filed a consent to disclosure. Shortly thereafter,
plaintiff's birth father indicated that he did not object to disclosure,
provided any identifying information about him was deleted. (FN1)
The probate court recognized that defendant was an agency subject to a
disclosure obligation under § 6-104, but denied the petition reasoning
that § 6-104(b) of the Act gave plaintiff access to only a summary of the
information held by an agency. Specifically, the court held: "it does not
appear that release of the actual file or copies thereof is mandated
pursuant to 15A V.S.A. § 6-104(b) & (c), provided that a detailed summary
of the relevant information in the file is compiled and provided to the
petitioner." It reviewed defendant's file, however, and went on to hold
that the information defendant had provided to plaintiff "is not sufficient
in detail to satisfy the requirements of the disclosure statute."
By motion to amend, plaintiff argued that the requirement for a
"detailed summary" would be satisfied only by a photocopy of the records
with the identifying information redacted. Defendant then filed a summary
of its records in compliance with the court order. The court rejected
plaintiff's motion and held that the summary filed by defendant complied
with its order.
Plaintiff then appealed to the superior court, phrasing as the
question before the court whether plaintiff should have access to
photocopies of defendant's records, modified only by the deletion of
identifying information concerning her birth father. Alternatively,
plaintiff posed twenty-two questions, including whether the disclosure
made by defendant in response to the probate court order complied with the
requirements of § 6-104(b). After procedural skirmishing, some of which
is discussed above in connection with the motion to disqualify, the
superior court granted summary judgment to defendant holding:
We conclude that the wording of § 6-104(b) is clear and
unambiguous, in the context of the whole statutory scheme, and that
LFC has fulfilled its obligation under the statute in this case. While
we sympathize with Appellant's desire for full disclosure
surrounding the circumstances of her adoption, the relief she seeks
is not authorized anywhere in the Adoption Act, and providing such
an order would run afoul of the very specific mandates of the
statute.
It does not appear that the superior court reviewed the file in issue
before rendering its decision.
C. Appeal Issues
On appeal, plaintiff makes three claims with respect to the merits of
the superior court decision: (1) section 6-104(b) authorizes the court to
order that plaintiff receive a photocopy of all records of defendant with
redactions of identifying information with respect to the birth father;
(2) the balancing of the factors contained in § 6-112(b) supports such an
order in this case; and (3) the superior court failed to discharge its
obligation under § 6-112(b) by reviewing "the records of the relevant
proceeding for adoption." Defendant answers all of plaintiff's claims with
the position that § 6-104(b) authorizes release only of a detailed summary
of its records, and defendant has provided that summary, as the probate
court found. It argues that because § 6-
104(b) does not require greater disclosure, such disclosure is prohibited
by § 6-102(a), (d) and would subject defendant, or its employees, to civil
penalties and fines under §§ 7-101(c) and 7-102(a).
Each of the three arguments raised by plaintiff require us to construe
provisions of the Vermont Adoption Act. We do so based on familiar
principles.
In construing statutes, our task is to look first at the statutory
language itself to determine whether its meaning is plain; if the language
is unclear and ambiguous, legislative history may be used to determine the
intent of the legislature. See Holmberg v. Brent, 161 Vt. 153, 155, 636 A.2d 333, 335 (1993). We interpret the statute as a whole, looking to the
reason and spirit of the law and its consequences and effects to reach a
fair and rational result. See State v. Ben-Mont Corp., 163 Vt. 53, 57,
652 A.2d 1004, 1007 (1994). Our overall purpose is to implement the
intent of the Legislature. See State v. Dixon, ___ Vt. ___, ___, 725 A.2d 920, 922 (1999).
D. Court's Power to Order Disclosure of Original Records
We reach a resolution of this case best by starting with plaintiff's
second argument - that the balance of factors contained in § 6-112(b) to
determine when court relief is appropriate supports the order plaintiff
seeks. Defendant has not directly answered this argument because it has
assumed that we should not reach the balancing test unless we find a clear
right of access to the records in § 6-104(b), and defendant believes there
is no right of access. For three reasons, we find this assumption
erroneous.
First, we find ambiguous the triggering language for the authorization
of court action for the disclosure of information. Section 6-112(a)
allows court action by a "person denied disclosure of information under
sections 6-104, 6-105(b)(1) or (2), or 6-107 of this title." 15A V.S.A. §
6-
112(a). What the language does not explicitly answer is whether the denial
must be lawful under the specified sections. Thus, it is unclear whether
§ 6-112(a) authorizes an enforcement action to protect rights created
under the disclosure sections of the Act, or, alternatively, a method for
persons properly denied access to records under the disclosure sections to
obtain a court order to obtain access, nevertheless.
Second, a close examination of the remainder of § 6-112 shows that the
section was intended to allow a court to order access to information where
no right to access is provided in the disclosure sections. In subsections
(d) and (e), the section specifies how the court is to resolve two special
circumstances. In each case, the subsections authorize the court to order
access where a provision of a disclosure section would prohibit such
access. For example, in instances where access must be based on a filed
consent to such access, see id. § 6-105(b)(1) (access to identifying
information of former parent with respect to adoptions finalized before
July 1, 1986 allowed only if former parent has filed a consent to
disclosure), disclosure can be ordered without consent if the court finds
that disclosure is in the best interest of the petitioner and is unlikely
to cause harm to the person whose identity is sought. See id. § 6-112(d).
Since these subsections involve examples of how the overall section is to
be used, it necessarily follows that § 6-112 generally authorizes the
court to order access where the disclosure sections do not provide such
access. Cf. In re Scheiber, ___ Vt. ___, ___, 724 A.2d 475, 476-78 (1998)
(construing certain recreational activities as "neither regulated nor
contemplated" by zoning ordinance).
This view of the purpose of § 6-112 is reinforced by the balancing
factors contained in § 6-112(b). Some of the balancing factors in §
6-112(b) make sense only if they relate to court discretion to order
disclosure where there is no absolute right of access. For example, the
court
must consider as a factor "whether the individual about whom information is
sought has filed a request for nondisclosure under section 6-106." 15A
V.S.A. § 6-112(b)(2). Section 6-106 provides, however, that by filing a
request for nondisclosure, a former parent prevents disclosure of
identifying information. See also id. § 6-105(b)(2) (identifying
information with respect to adoptions finalized on or after July 1, 1986
may be disclosed, despite lack of a former parent's consent, but not if
the former parent has filed a request for nondisclosure). If § 6-112(b)
allows court enforcement of access rights only if they are granted under
other sections of the act, the court would never consider the presence of
a nondisclosure request as a balancing factor because the presence of a
nondisclosure request negates any access right.
Finally, we note that if § 6-112 provides only for the enforcement of
access rights granted in the disclosure sections, it duplicates the
function of § 6-104(e), which authorizes court actions to enforce the
right of access to nonidentifying information. We avoid a statutory
construction that would render part of the statutory language superfluous.
See Trombley v. Bellows Falls Union High School, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993).
The third reason is the most important. Although there are numerous
amendments made by the Legislature, the template for the Vermont Adoption
Act is the Uniform Adoption Act, approved by the National Conference of
Commissioners on Uniform State Laws in 1994. See 9 U.L.A. 1 (Supp.
Pamphlet 1998). When our statute is taken from a model or uniform act, it
is often helpful to examine the intent behind the model. See State v.
Papazoni, 159 Vt. 578, 581, 622 A.2d 501, 503 (1993). Here, an
examination of the uniform act gives us helpful insight in construing our
statute.
Like the Vermont Adoption Act, the Uniform Adoption Act contains two
provisions on
court actions to gain disclosure of identifying or nonidentifying
information. The first, contained in § 6-103(c) of the Uniform Act is
virtually identical to that in § 6-104(e) of the Vermont Adoption Act and
enforces an individual's right to access to nonidentifying information.
See 9 U.L.A. 83 (Supp. Pamphlet 1998). The second, contained in § 6-105
of the Uniform Act, is similar to that created in § 6-112 of the Vermont
Act but explicitly applies only when the information sought is not
available under the disclosure sections of the Act. See id. at 84-85
(section 6-105(a) specifies that the section applies "[t]o obtain
information not otherwise available under" the disclosure sections of the
Uniform Act). It contains a virtually identical list of factors for the
court to use in determining whether to order disclosure. See Uniform
Adoption Act § 6-105(b) at 85.
We have noted before that the combination of model act provisions and
those locally-drafted often does not produce a seamless web. See State v.
Quinn, 165 Vt. 136, 139, 675 A.2d 1336, 1338 (1996); Martel v. Stafford,
157 Vt. 604, 609, 603 A.2d 345, 348 (1991). We are reluctant to conclude,
however, that when the Legislature uses model language it does so for a
purpose different from the purpose in the model act. See Quinn, 165 Vt. at
139, 675 A.2d at 1338; Martel, 157 Vt. at 609, 603 A.2d at 348. In the
Uniform Adoption Law, the purpose of the list of factors is to inform the
court's discretion where there is no clear statutory right of access. We
conclude that the purpose is the same in § 6-112 of the Vermont Adoption
Act.
Based on our construction of § 6-112, we conclude that the superior
and probate courts could have ordered the relief plaintiff sought, even if
it is not authorized by § 6-104(b), if the court found that the balance of
the factors contained in § 6-112(b) tips in favor of disclosure. The
superior court's grant of summary judgment to defendant, without
considering those factors, was
error.
Although we recognize that plaintiff has argued that the balance of
the factors contained in § 6-112(b) tips heavily in favor of disclosure,
we do not believe it is appropriate for us to determine whether to grant
relief in the first instance. Section 6-112(b) requires the court to
"make specific findings" on the statutory factors, which it can do only if
it has taken evidence or the relevant facts are undisputed. In this case,
the court did not take evidence or make findings because it granted the
motion for summary judgment. We must remand for evidence and findings.
Although we do not decide whether plaintiff should be granted the
relief she requests, we make one additional comment on the statutory
scheme because it may be helpful in resolving plaintiff's petition. As we
indicated in the outset, this is a dispute about defendant's actions in
facilitating plaintiff's adoption, and defendant is seeking to protect its
own privacy interests, rather than those of birth or adoptive parents or
their families. As we explain in more detail infra, we can discern no
legislative intent to use the privacy protection provisions of the act to
protect the privacy interests of an adoption agency. Thus, we do not
believe that references to "the individual" in the factors contained in §
6-112(b) include the adoption agency or its employees.
E. Nature of Detailed Summary of Records
Because our resolution of the second issue requires further
proceedings that may or may not resolve the case, we examine the other
issues raised by plaintiff. Plaintiff argues first that she has a right
of access to a photocopy of defendant's records under § 6-104(b), which
requires an agency to furnish to an adult adoptee "a detailed summary of
any relevant report or information contained in confidential reports in
their possession about the adoptee." 15A V.S.A. § 6-104(b). The superior
court found that the plain meaning of the term "detailed summary" does not
include
photocopies of original records. We agree with this conclusion. See
Random House Unabridged Dictionary 1904 (2d ed. 1993) (summary is an
"abstract, recapitulation or compendium" of information). As the probate
court held, "[u]nder any definition provided or reasonably imagined, a
summary is something other than the original document itself."
This conclusion does not, however, end our inquiry. Plaintiff claims
that the summary provided her by defendant is insufficient to qualify as a
detailed summary. We agree with this claim.
Although plaintiff made this claim in her statement of questions, it
does not appear that the superior court made an in camera inspection of
defendant's file to determine whether the summary provided by defendant
during the probate proceeding met the requirements of § 6-104(b). We have
obtained the file from the probate court and made that inspection.
As might be expected by the nature of this controversy, the summary
provided by defendant is least detailed in its description of the actions
and thought processes of the Elizabeth Lund Home and its employees. The
file contains information, omitted from the summary, about the process of
relinquishment of plaintiff to the Home. It contains more information than
the summary about how the placement was made with plaintiff's adoptive
parents and about the actions of Elizabeth Lund Home staff with respect to
adoption authorities in Pennsylvania, the state to which plaintiff was
taken immediately after the placement, and with respect to the probate
court at the time the adoption decision was made. Because of these
omissions, we conclude that the summary does not comply with § 6-104(b).
In reaching this conclusion, we make two points about the nature of
the disclosure obligation in § 6-104(b). The language requiring access to
a "detailed summary" rather than the
original records comes from the Uniform Adoption Act. The policy behind
the requirement appears to be to allow release of nonidentifying
information, without providing identifying information. We do not read
the requirement as allowing the holder of the information to omit
information important to the person making the request as long as the
information can be provided without identifying information. This policy
is necessarily inherent in the terminology chosen. Thus, a summary can be
brief, but it must be comprehensive, even more so if it is to be a
"detailed summary." See Random House Unabridged Dictionary at 1904
(summary is "comprehensive"). Although § 6-104 does not authorize access
to the records in their original form, it also does not authorize the
custodian to censor the nonidentifying information provided.
Second, we do not believe an adoption agency can use the requirement
to provide only summaries to omit information, the disclosure of which
might be detrimental to the agency. The Vermont Adoption Act of 1996 was
the culmination of a five year project on the part of the Vermont
Legislature. See 1989, No. 213 (Adj. Sess.) (an act forming the Adoption
Reform Task Force to study issues surrounding adoption); 1993, No. 214
(Adj. Sess.) (an act making some modifications in disclosure statutes and
establishing a legislative study committee to examine adoption issues
generally); 1995, No. 161 (Adj. Sess.) (act adopting the Vermont Adoption
Act as a new title 15A of V.S.A.). The Adoption Act was first written by
the Adoption Reform Task Force and then rewritten by the Vermont
Legislature, working from a 1992 draft of the Uniform Adoption Act, and as
such became the first state to adopt the Uniform Adoption Act. See 9
U.L.A. 1 (Supp. Pamphlet 1998) (as of 1998, Vermont is the only state to
adopt the Uniform Act). The drafters of the Uniform act intended Article
6 to create a more open system of adoption files while balancing the
interests of the birth parents, the adoptive parents and the adoptee,
collectively referred to as the "adoption triad." See Uniform Adoption
Act, Comment to Article 6 in 9 U.L.A. 81 (Supp. Pamphlet 1998) (goal of
article is to encourage the collection and release of nonidentifying
information to adoptive parents and to adoptees at age eighteen on
request).
We have made an extensive review of the legislative history of
Vermont's Adoption Act of 1995, including the many committee meetings and
hearings in both the Vermont House and Senate, and from the record it is
clear that the Legislature shared the uniform act drafter's objective of
creating a balance that would remove the culture of secrecy from adoptions,
while giving integrity to the interests of the adoption triad. We find
nothing in the legislative history to suggest that the Legislature was
concerned about protecting private information of an adoption agency or
that it would elevate the interests of an agency above those of a member of
the triad. Accordingly, we do not believe an agency has any legitimate
interest in withholding information about its activities in preparing a
detailed summary of nonidentifying information under § 6-104(b).
F. Conclusion
In conclusion, we hold that the probate court, and on appeal the
superior court, had the authority under § 6-112(a) of the Vermont Adoption
Act to order the relief plaintiff requested if the court finds that the
balance of factors under § 6-112(b) supports that relief. If the superior
court decides not to order the requested relief under § 6-112(a), defendant
must create a further detailed summary of the information in its files to
comply with § 6-104(b), as interpreted in this opinion. Because of our
disposition of the merits, we do not reach plaintiff's claims of error in
the procedures employed by the superior court.
The decision not to disqualify Judge Linda Levitt is affirmed. The
superior court decision on plaintiff's appeal from the Chittenden Probate
Court is reversed and remanded for proceedings not inconsistent with this
opinion.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Plaintiff's birth mother has identified the man she claims is
plaintiff's father, but he has denied paternity. It appears that the
putative father's position is based on preventing public disclosure of the
mother's claim that he is plaintiff's father. In any event, neither
defendant's position, nor the court decisions in this case, are based on
the protection of the privacy interests of the putative father.
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