Matter of Anne M.M.W.

[*1] Matter of Anne M.M.W. 2013 NY Slip Op 52306(U) Decided on December 19, 2013 Sur Ct, Nassau County McCarty III, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2013
Sur Ct, Nassau County

In the Matter of the Application of Anne M.M.W., to unseal adoption records.



3452



The Petitioner is Pro Se.

Edward W. McCarty III, J.

This is an application by an adult, who was adopted as an infant in 1951, to unseal adoption records, based upon medical necessity. Applicant is now sixty-seven years of age. Her previous application for non-identifying information resulted in an order of this court dated August 3, 2012, pursuant to which the applicant was provided with the non-identifying information contained in her adoption file. No medical information is contained in the adoption file.

In support of the current application, the adopted adult states that she requires access to her sealed birth records for the following medical reasons:

"I would like to obtain any and all information in my adoption file concerning my birth parents and birth family. I need this information to assist me in finding out as much as possible about any genetic and/or medical conditions in order to protect myself and my two surviving daughters, ages 41 and 37, and six grandchildren. My middle child suffered from Muscular Dystrophy, an auto immune disorder and passed in 1987, currently my youngest daughter suffers from Crohns disease and rheumatoid arthritis, which is genetically inherited. My oldest daughter is undergoing observation/treatment for cervical and breast cancer. I am under several Doctors care for the following diseases: Cardiac myopathy, COPD, and diabetes. As a mother and grandmother, I feel it is my responsibility to obtain any and all medical and genetic information about both my birth parents and their families. Without the information in my adoption file, I will have great difficulty in locating my birth family to determine much needed medical information."

For the reasons set forth below, the court must deny the current application.

Domestic Relations Law §114 requires that adoption records be sealed. The purpose is to protect and ensure confidentiality which is "vital to the adoption process" (Matter of Hayden, 106 Misc 2d 849, 850 [Sup Ct, Albany County 1981]). The confidential nature of the adoption process serves many purposes - to foster a stable and secure home for the adopted child, to ensure that the biological parents will be able to start a new life without fear of the past intruding on their ability to do so, conversely, to allow the adoptive parents to go on without fear that the [*2]biological parents will intrude into their lives, and to shield the adopted child from possibly disturbing facts regarding his 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 [Sup Ct, Albany County1981]). The statutory sealing requirements have been held to be constitutional and do not violate the adopted 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 [Sur Ct, Kings County 1981]).

Despite the strong policy in favor of confidentiality, the courts and the Legislature have recognized that, under certain circumstances, an adopted child may need information concerning his or her medical background (Matter of Chattman, 57 AD2d 618 [2nd Dept 1977]; Juman v Louise Wise Services, 159 Misc 2d 314 [Sup Ct, New York County 1994], affd 211 AD2d 446 [1st Dept 1995]; Matter of Harrington, NYLJ, Mar. 31, 1993, at 25, col 6 [Sur Ct, Westchester County]). 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 [4th Dept 2002]). The Legislature, recognizing the adopted 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.

Based on 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 and 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 requires the appointment of a guardian ad litem to review the records or, if the records are insufficient, to contact the biological parents.

The type of certification required under Domestic Relations Law §114 (4) was found to exist in Matter of Howard (NYLJ, Dec. 28, 1998, at 27, col. 5 [Sur Ct, New York County]). There, the adopted child had medical problems, which according to his doctors, were inherited. The doctor averred that information concerning both parents' medical history, as well as the medical condition of the adopted child at birth, were necessary to provide proper medical care to the adopted child and his issue. Pursuant to the procedure set out in Domestic Relations Law [*3]§114 (4), the court appointed a guardian ad litem to review the records and to contact the biological parents if the record was insufficient. The court held that the biological parents, if located, should be given the option to disclose the information sought by the adopted child as well as the option to consent to the examination of his or her medical records.

Here, the applicant has submitted a letter from her cardiologist which provides the following information in support of the application: "[Applicant] is under my care for a number of cardiac and medical problems. There is a significant genetic pre-disposition to her medical problems and it would be beneficial to her family if her parental medical history was known."

The letter from applicant's physician does not advise the court of a specific serious physical or mental illness which requires that the court unseal the applicant's file, nor does it address the information necessary to address the serious illness. Moreover, as previously noted, applicant's adoption file does not contain any medical information. Applicant seeks access to her adoption file because, as she states in her application, "[w]ithout the information in my adoption file, I will have great difficulty in locating my birth family to determine much needed medical information."

Although the applicant has failed to provide the type of certification to establish prima facie "good cause" under Domestic Relations Law §114 (4), she may still establish good cause under Domestic Relations Law §114 (2) (see Matter of Rubin, NYLJ, Mar. 26, 1999, at 31, col.5 [Sur Ct, New York County]). This section provides for the unsealing of adoption records "on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct." However, the court finds that the present `application is insufficient to establish good cause under Domestic Relations Law § 114 (2). Applicant advises the court that the medical problems faced by herself and her children have a genetic component, but even where a genetic component is demonstrated, applicant must show that the existence of a genetic link would impact upon the medical management of the inherited disorders (see Matter of Jonna R.D., 11 Misc 3d 1079(A) [Sur Ct, Nassau County 2006]). Moreover, Domestic Relations Law §114 (2) requires that notice be given to the adoptive parents; although applicant has indicated that her adoptive parents are deceased, she has not provided the court with death certificates for the adoptive parents.

"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]). The court finds that the facts presented to the court today do not contain sufficient information on which the court might order the unsealing of petitioner's adoption records. The adopted adult may resubmit her application on medical grounds with additional supporting documentation in compliance with Domestic Relations Law §114. If a further application is filed pursuant to Domestic Relations Law §114 (2), the adopted child shall also furnish the court with a death certificate for each deceased adoptive parent. In addition, applicant should agree, in writing, to pay the reasonable fees and expenses of a guardian ad litem.[FN1]

This constitutes the decision and order of the court. [*4]

Dated: December 19, 2013

EDWARD W. McCARTY III

Judge of theSurrogate's Court Footnotes

Footnote 1:. In the event that the application is granted, a guardian ad litem may be appointed to examine the adoption records, and possibly locate and contact applicant's biological parents, if necessary, to obtain requisite medical information.