I’ve been trading emails with DB recently. DB is a 52-year-old adoptee from Washington, D.C. Or, to dispense with the pretense of secret adoptees, DB is Danny Berler. You can find out more about him here, and I encourage you to watch and listen to his story and help with his legal fees in seeking full access to his adoption records and original birth certificate. Here’s how a recent DC Court of Appeals decision described his efforts so far:
Appellant D.B. was adopted in the District of Columbia in the mid-1960s. The Jewish Social Services Agency (“JSSA”) was the adoption agency involved. In 2004, D.B. filed a petition in the Superior Court seeking access to the records of his adoption. The trial court partially granted D.B.’s request, but D.B. did not obtain information identifying his biological parents.
In 2014, D.B. filed a second petition, asking for the names of his biological parents as well as all records held by the court and JSSA pertaining to his adoption. The trial court partially granted the petition, directing JSSA to act as an intermediary and to investigate the identities of D.B.’s biological parents. In response, JSSA reported that a search for D.B.’s biological parents had not been successful. JSSA also informed the trial court that D.B.’s biological parents ‘were promised confidentiality’ and that ‘JSSA has never released records without the specific permission of the client.’ The trial court thereafter issued an order denying D.B.’s petition, concluding that, ‘[i]n the absence of a waiver, the guarantee of confidentiality shall not be disturbed.’
The court of appeals then kicked it back to the trial court because the judge had failed to make any findings about Berler’s specific right to access his records. As is the current practice in D.C.—which I describe a bit here with my own efforts—the trial court typically responds to petitions to unseal records by unsealing them and then punting everything else over to the adoption agency. And, as many folks know, that’s where most efforts typically go south, for a number of reasons.
First, there’s no real or meaningful oversight of agency practices in allowing or (almost universally) disallowing access to records. In response to a court order unsealing the records, the agency offers “search and reunion” services for a significant fee, but never releases any records. And that’s that: no hearing, no further recourse, you get what you get, if anything. In fact, this past week I received an email from a DC government representative informing me that I couldn’t see or inspect my own records even if I unseal them. I had already told them that I know who my birth parents are and don’t need any intermediary “search and reunion” services. Inexplicably, I got the standard response again: “Thank you for your request to conduct a search regarding your adoption.” Honestly, it would be funny if it wasn’t so aggravating, expensive, and useless.
Second, and this is a huge issue, Berler’s challenge to the trial court and agency’s approach has led to what may be the first hearing in DC courts in many years, if ever, on the issue of whether alleged birth parent confidentiality trumps an adoptee’s right to his vital records. As the appeals court noted:
[t]here appears to be a dispute about whether D.B.’s biological parents were, or could lawfully have been, promised confidentiality at the time of D.B.’s adoption.
Because of that dispute and others, the court sent the case back to the district court for hearing and to make findings on whether Berler has met his burden to show he is entitled to his records. To get a hearing specifically on the issue of “birth parent confidentiality” is particularly significant and could lead to a decision that upends adoption agencies’ continued reliance on vague and unenforceable promises of secrecy, at least in Washington, D.C. After all, there is nothing in the DC law that mentions birth parent confidentiality as an issue in releasing an adoptee’s records. Rather, the law states that:
records and papers in adoption proceedings shall be sealed. They may not be inspected by any person, including the parties to the proceeding, except upon order of the court, and only then when the court is satisfied that the welfare of the child will thereby be promoted or protected.
Moreover, with respect to the original birth certificate in the District of Columbia, it is entirely up to adoptive parents whether to have a new certificate issued or whether to keep the original one. DC law expressly states that a new birth certificate is issued “[u]nless otherwise requested in the petition by the adopters.” DC law further provides that the “Registrar shall not establish a new certificate of birth if so requested by the adoptive parents . . . .” How’s that for securing birth parent secrecy?
There are other significant issues involved in Berler’s case, including somewhat technical issues about what exactly is meant in DC law by “records and papers in adoption proceedings” and how those records may be controlled or restricted. The short court opinion is here and outlines the issues now being directed back for findings at the district court level, including additional issues related to the agency’s search for his birth parents. After all, the agency could not find what Berler found rather easily through his own investigator.
In talking to other adoptees and birth parents, the stories of agencies that outright lie—or do essentially the same thing by doing nothing other than charging a fee—no longer surprise me. One of the central questions Berler now raises is how we, in an open society, are able to hold agencies accountable when what they do remains behind a well-protected black hole of secrecy. Hopefully, a decision in DB’s case may lead to more stringent oversight of agency practices and, at a minimum, recognition of basic due process rights for adult adoptees in seeking records to which they should already be entitled. Stay tuned. It’s still very much up in the air.