IN THE MATTER OF THE ADOPTION OF A CHILD BY WILLIAM H. ALSTON AND MERRY BEATRICE STOKES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

IN THE MATTER OF THE ADOPTION

OF A CHILD BY WILLIAM H. ALSTON

AND MERRY BEATRICE STOKES.

________________________________

SubmittedMay 29, 2014 DecidedJune 6, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County.

Warren M. Alston, appellant pro se.

James F. Ferguson, Atlantic County Counsel, attorney for respondent Atlantic County Surrogate's Office (Donna M. Taylor, Assistant County Counsel, on the brief).

PER CURIAM

Appellant Warren M. Alston appeals from the September 6, 2013 Chancery Division order, which denied his request to unseal his adoption records by the Atlantic County Surrogate. We reverse and remand for further proceedings.

We derive the following facts from the record. Appellant was born in Atlantic City on July 16, 1956. He claims that K.H. and A.H.1 were his birth parents based on a July 18, 1956 newspaper article stating that twin boys were born to these individuals in Atlantic City on July 16, 1956. Appellant found the article in 1966 or 1967 in the bedroom closet of his adoptive parents, William H. Alston and Merry Beatrice Stokes, who lived in Long Branch.

Appellant filed a request with the court to unseal his adoption records and exclude K.H. and A.H. as his birth parents.2 The court directed the Surrogate's Office to retrieve appellant's adoption records.

In a September 6, 2013 written decision, the court noted that the Surrogate's Office investigated and advised the court "that after a thorough review of the records, based upon the information supplied by [appellant], the staff was unable to locate any record regarding Warren M. Austin in Atlantic County." (Emphasis added). Referring to appellant as "Mr. Austin," not Mr. Alston, the court denied the request and suggested that appellant file a similar request with the Monmouth County Surrogate's Office. The court did not address appellant's request to exclude K.H. and A.H. as his birth parents.

On appeal, appellant contends that the judge erred in refusing to unseal his adoption records and in failing to address the exclusion of K.H. and A.H. as his natural parents. Appellant also generally contends that the court's decision does not comply with the then-pending legislation that permits adoptees to obtain their original birth certificate without court involvement.3

Following an adoption, the State Registrar places the adoptee's original birth certificate and all related documents "under seal." N.J.S.A. 26:8-40.1. The seal "shall not be broken except by order of a court of competent jurisdiction." Ibid. Because parties, such as adult adoptees, may have an interest in disclosure of their original birth certificates, which countervails the birth parents' right to privacy, courts may break the seal "upon good cause shown." Mills v. Atlantic City Dept. of Vital Statistics, 148 N.J. Super. 302, 312 (Ch. Div. 1977); see also In re Adoption of Mellinger, 288 N.J. Super. 191, 196 (App. Div. 1996). Under N.J.S.A. 9:3-31 (repealed by L. 1977, c. 367, 20), courts retained "the power to weigh and balance the competing privacy rights and make a determination based on the facts and circumstances of each individual case." Mills, supra, 148 N.J. Super. at 312; accord N.J.S.A. 9:3-52 (all documents under seal must remain so "unless the court, upon good cause shown," otherwise orders the documents be unsealed). Accordingly, the court "must weigh the adoptees' needs against the natural parents' rights." Mills, supra, 148 N.J. Super. at 319.

The party seeking to unseal adoption records must be a "member[] of a class in which there is an overwhelming state interest [and] must demonstrate good cause." Id. at 313. When an adult adoptee requests access to his own birth records, "the burden of proof . . . shift[s] to the State to demonstrate that good cause is not present." Id. at 318. "Requests for medical, hereditary or ethnic background information should be granted, absent some showing of compelling reasons not to reveal the information." Ibid.

In Mills, the court established a detailed procedure to be followed when an individual requests unsealing of adoption records. When an adoptee makes a request to the court, the request must be "referred to an intermediary agency for investigation." Id. at 320-21. Specifically, the requests are assigned to the agency that made the adoptive placement, or another agency selected by the court if the original agency no longer exists. Ibid. The agency handling the inquiry acts as "an arm of the court and will have full freedom in its response to the request, including use of the official court record." Ibid. "[T]he agency should work to meet the explicit request of the adoptee if feasible," and if the agency or the biological parent "refuses to consent to the divulgence of identifying data, the adoptee shall have the right to appeal" to the Chancery Division. Id. at 321. If the natural parent consents, "disclosure should be automatic." Ibid. "[W]here the agency's investigation fails to locate the natural parents[,] the adoptee may appeal to the [Chancery Division] for the information necessary to carry on the search." Ibid.

Here, in an attempt to satisfy the procedure established in Mills, the court assigned the investigation to the Atlantic County Surrogate's Office. The Surrogate's Office reported it could not locate any record based upon the information appellant supplied. The record before us does not include appellant's submissions to the court or Surrogate's Office; however, the court's written decision indicates that the Surrogate's Office may have incorrectly investigated the name "Warren M. Austin," not appellant's name, Warren M. Alston. It is unclear whether this is merely a typographical error, or an error in the investigation.

It is readily apparent that investigating the wrong name would result in the Surrogate's Office failing to find any record of appellant's adoption. Accordingly, we remand to the court for a determination as to whether the Surrogate's Office investigated the correct name. If the Surrogate's Office investigated the wrong name, it must conduct a new investigation using the correct name. If the Surrogate's Office investigated the correct name, then appellant's recourse is to appeal to the Chancery Division "for the information necessary to carry on the search." Ibid. If the search is successful and appellant's natural parents are located but do not consent to disclosure of their identities, the court must conduct the balancing test described in Mills. Ibid.

If appellant's adoption records are discovered on remand and reveal that K.H. and A.H. are appellant's birth parents, then the court shall address appellant's request to exclude them as his birth parents.

Appellant's argument that the court's decision does not comply with L. 2014, c. 9 (to be codified at N.J.S.A. 26:8-40.1c) lacks merit. The statute is not effective until January 1, 2017, and it requires an applicant seeking an uncertified, long-form copy of his birth certificate to "establish himself as . . . the adopted person." Ibid. Plaintiff has not yet established himself an as adopted person, and thus, is not presently entitled to an uncertified, long-form birth certificate.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 We use initials to protect the identities of Alston's alleged birth parents.

2 Appellant claimed that the last name of his birth parents may be an alias.

3 On May 27, 2014, the Governor signed L. 2014, c. 9 (to be codified at N.J.S.A. 26:8-40.1c), effective Jan. 1, 2017.