A few weeks ago I filed my second “break seal” petition. Breaking a seal in the Washington, D.C., courts is a bit of a misnomer, at least in application. While the court regularly agrees to “break” the seal in response to petitions like mine, it does not always lead to the release of sealed records. Rather, breaking the seal is the start of an opaque process that initially sends the matter to the adoption agency that handled your adoption. The process then involves paying the agency to find your birth parents to determine what they want to happen. For some, the process ends with a letter from the agency informing you that your parents were not found or, if they were found, that they objected to disclosure of their names to you.

This was the process followed by Danny Berler, first in 2004 and then again in 2014. In his first attempt, Berler got nothing for his money other than a letter from Jewish Social Services saying that they could not find his mom. He tried again a decade later and, after a long and expensive two-year legal fight, received his court records this past summer. The court, however, denied his primary request: to receive copies of his agency records.

In 2000, I also got little from my first break seal petition, other than a letter from Family and Children’s Services requesting payment of $500 for “search and reunion services.” I was not interested in search and reunion then. I wanted information and, I hoped, proof of heritage that may come with that information. Documentation and proof is the first and most basic step; what you do with that proof is always—always—a profoundly different question.

It took me a few months to prepare my latest petition. As a lawyer, I went whole hog, writing a lengthy and deeply-researched legal memorandum and including my own affidavit as well as the affidavits of each of my adoptive parents. You could say I threw in the kitchen sink, which is fair enough. But I also want to cover all the legal bases. If a detailed and well-researched memorandum, combined with support from adoptive parents, serves to focus the legal framework of the case, all the better for the judge and, ultimately, for any potential appeal.

I hope an appeal is unnecessary—the law, after all, is on my side, and has been since at least 1979, when Judge Joyce Hens Green issued a landmark opinion in the district that provided an adult adoptee with the identities of her birth parents.

Nearly forty years later, though, at least one judge has mucked up the legacy of that decision and has created a potentially irreconcilable bookend to how District of Columbia courts handle adult adoptees’ break seal petitions. On one end, at the beginning, is Judge Green’s clear and focused opinion that gives adult adoptees a nearly unrestricted right to access their court records. On the other end, today, is Judge Epstein’s recent opinion of In Re: D.B.

This is a short primer on both.

In Re: D.B.

In Re: D.B. is Danny Berler’s case, released by Judge Anthony Epstein at the end of this past summer. As I already wrote here, Judge Epstein’s opinion does two things:

1) orders the release of Berler’s sealed adoption court records; and
2) denies Berler’s request to release his adoption agency records to him.

I was not particularly surprised by either result; by the time of the decision Berler knew the identity of his birth mother, and everyone had agreed that Berler should get his court records. As for agency records, they are typically difficult to get, often because courts believe—wrongly or rightly—that agency records remain private and outside the realm of court control.

Despite my lack of surprise about both results, it’s worth analyzing how Judge Epstein approached Berler’s break seal case and how, despite not needing to do so, he issued an opinion that could negatively affect adoptees in the future.

First, by the time the case came before Judge Epstein, Berler had learned the identity of his birth mother by using his own private investigator. Thus, Berler, the District of Columbia, the Children’s Law Center of Washington, D.C., and Jewish Social Services—all the participants in the case—agreed that Berler was entitled to receive his sealed court records, and Judge Epstein acknowledged earlier in the case that “[i]t is hard to see on what basis [Jewish Social Services] could legitimately object” to their release.

This generally meant that the matter of the release of Berler’s court records had become moot. With everyone agreeing to release, there was no further dispute to resolve, no need to issue what would amount to an unnecessary and “advisory” decision. That is, things were done, the case for his court records over, kaput. Nevertheless, Judge Epstein plowed ahead with his decision, even acknowledging that the issue was moot but using the facts of the case to clarify how he would approach and decide break seal matters that come before him in the future.

As a quick aside, DC law is unique among many states in how it approaches the sealing and unsealing of records in adoption proceedings. The law, in effect since 1954, requires sealing of the records at the time of the filing of an adoption petition. It also allows the records to be unsealed by court order. Specifically, the law states that the records:

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.

As I argued in my latest petition, the district’s adoption law does not impose a “good cause” balancing test, one where the release of an adult adoptee’s confidential records is weighed against any other interests, such as the alleged confidentiality concerns of affected birth parents. In fact, the District of Columbia repealed a prior good cause requirement in 1937, replacing it with the current standard now in place since 1954. Now, clearly, the standard is adoptee-focused.

Judge Epstein, however, parsed the statute to diminish and effectively eliminate the adoptee focus and replace it with a balancing test typically associated with good cause standards, as in “you are required to show good cause to overcome a birth parent’s objection.” It’s difficult to explain, at least succinctly, why he did this, though I’ll give it a try.

First, he found that the use of the phrase “welfare of the child” in the law meant that this specific provision allowing the unsealing applies to minor adoptees and did not specifically apply to adult adoptees. While the law does not say “minor child”—and D.C.’s adoption law regularly uses child interchangeably to refer to all adoptees—Judge Epstein believed differently. Thus, he said, he was not restricted by the phrase “welfare of the child” but could instead consider wider interests, including birth parent and any other interests. Ultimately, despite a prior good cause standard being eliminated by the district more than a half-century before, Judge Epstein reinstated such a balancing approach in determining whether to release an adult adoptee’s court records.

In effect, he looked at a clearly worded statute and judicially rewrote it to include a previously rejected standard.

Part of what prompted my confusion with Judge Epstein’s decision is his own misunderstanding that “disclosure” of information is identical to “contact” with a birth parent. Indeed, the conflation of these terms may best explain how Judge Epstein ended up getting things so wrong. For instance, Judge Epstein believed it would be particularly “unjust” to:

disclose . . . a biological parent’s identity even if the adult adoptee has only a slight interest in meeting the parent, and meeting the adoptee would have devastating consequences for the parent or the parent’s family.

As I’ve said many many times before, information is not contact, knowledge is not reunion. Unfortunately, to this day, Judge Epstein and some adoptee activists don’t always comprehend such a critical distinction.

Ultimately, Judge Epstein’s opinion is not precedential. It is advisory in nature, largely because he didn’t actually decide anything. The parties, after all, had already agreed to give Danny Berler his court records. Nevertheless, break seal petitions that come before Judge Epstein in the future will continue to be referred to the adoption agency that initially handled the adoption. That agency, as is also current practice, may then charge up to $500 to search for the adoptee’s birth parents. If the agency locates a parent, then the agency should—according to Judge Epstein’s position—“determine whether the biological parent is willing to have contact with the adoptee.” What happens next, at least if it is before Judge Epstein, is one of the following:

• If the birth parent consents to contact, the “agency provides identifying information to the adoptee or facilitates a meeting with the adoptee, and the case is then resealed;”
• If the birth parent objects “and the adoptee accepts the biological parent’s decision, the case will be resealed” and no identifying information will be released;
• If the agency cannot find the birth parent, no information is released (though Judge Epstein’s order is silent on what would happen if a birth parent is no longer alive).

In practice, Judge Epstein’s approach means that a birth parent’s objection to “contact” will prohibit disclosure of any information, especially when most adoptees are unrepresented and do not realize they actually have one further important step they may take.

That step is a hearing, which must be specifically requested. The hearing could include evidence about whether an adoption agency’s unsuccessful search was sufficient or whether an adoptee’s interest in the records outweighs a birth parent’s request for confidentiality (again, imposing a balancing of interest test typically associated with good cause requirements). Interestingly, it could also include evidence as to whether the “biological parents had a reasonable expectation of confidentiality and what weight the Court should give such an expectation.” In the end, despite cases where an adoptee requests only information and does not specifically seek reunion, both parties end up in court, fighting not over release of information but theoretically over potential contact with each other.

It should not be this way, legally or practically. In fact, it was not intended to be this way in 1979 when Joyce Hens Green, a highly respected D.C. superior court judge at the time, interpreted and applied the exact same law and came out with a dramatically different result.

In Re: Female Infant

In Re: Female Infant, decided in January 1979, was the first case in the district to deal comprehensively with an adult adoptee’s request to unseal court records. Despite the use of the word infant in the case title, the adoptee was not an infant, either at the time of her adoption or at the time she sought to unseal her records. She was, in fact, Carolyn A. Brinker, a twenty-two-year-old mother of two who, along with a twin sister, had been adopted by a Maryland couple in 1956 at the age of three. Brinker, though, had no memory of her birth parents and did not know their names. In filing her petition, Brinker sought to unseal her records so that she could 1) receive medical information and 2) resolve questions over her own identity.

A different judge had previously denied Brinker’s petition without holding a hearing, and Brinker’s attorney appealed that decision to the DC Court of Appeals. The court of appeals, in a short opinion, reversed the trial court decision, noting that:

It is difficult to imagine a more persuasive preliminary showing by an adoptee than we have here. Yet, there has been no hearing in the trial court to afford the necessary evidentiary exploration. We consider the time has come for the courts of this jurisdiction to come to grips with this touching and recurring social question on the merits. At the same time, it should be kept in the forefront that we have before us an adult, married adoptee, which bespeaks maturity. The same request by a minor would pose different considerations.

Judge Joyce Hens Green was assigned the case on remand. In taking up the case, Judge Green noted that:

This matter comes before the Court . . . for a full evidentiary hearing to determine whether an adult adoptee may obtain the names of her birth parents and other identifying information from the sealed court adoption records. The sensitive issue raised, one of first impression in this jurisdiction, is deeply important and heartfelt not only to the parties involved in this case, but also to many throughout the District of Columbia.

The evidentiary hearing occurred in October 1978 over the course of three days, and from all accounts it was a costly and emotionally draining ordeal for Brinker. She testified, as did her psychiatrist, who had evaluated her for purposes of the case. Her adoptive mother testified, and the court also heard testimony from “psychiatrists and experts in the field of adoption.” Finally, the court considered studies about identity issues and about reunions between adoptees and birth parents. In the end, Judge Green set forth the three specific issues that were finally before her:

1. Whether and to what degree the court may consider the interests of the petitioner’s birth and adoptive parents in determining whether disclosure of information will promote or protect an adoptee’s welfare;
2. Whether an adoptee’s professed concern regarding possible hereditary diseases or defects is sufficient to support a finding that disclosure of medical information would promote or protect the adoptee’s welfare;
3. Whether an adoptee’s allegations of bewilderment concerning her identity are sufficient to support a finding that disclosure of identifying information concerning her birth parents would promote or protect her welfare.

The first question dealt with how to interpret and apply the district’s law governing sealed adoption records, the law that had been in effect since 1954. The remaining two questions involved whether Brinker’s proffered reasons to unseal her records were good enough. Judge Green answered each question in favor of Brinker.

I should note again that the district’s law on sealing adoption records has not changed since 1954. That is, it was the same in 1954 as it was in 1979 as it is today in 2017. That law, section 16-311 to be specific, allows a court to unseal records only when “the welfare of the child will . . . be promoted or protected.” The law does not require, as it does in other states, a good cause standard or any kind of balancing of interests between adoptees, adoptive parents, or birth parents. As Judge Green noted:

the phrasing of the statute prohibits any such balancing process. The Court is therefore impelled to find in this case that the privacy interests of the birth parents must bow to the interest of the adoptee and that any conflict between the interests of birth or adoptive parents and child must be resolved in favor of the promotion or protection of the welfare of the child.

Having rejected a balancing of interest “good cause” standard, Judge Green then ruled that, when an adult adoptee requests access to her sealed adoption records, “the burden of proof must shift to the District of Columbia to show that disclosure will not promote or protect the adoptee’s interests.” The District of Columbia—which was essentially the agency in Brinker’s case—could not meet such a burden, and it is doubtful that the district, an adoption agency, or even a birth parent could do so in most cases where a competent adult adoptee requests her own records. That’s just D.C. law.

The court further stated that Brinker’s need for complete medical information required release of the birth parents’ identities because  it is “indisputable that learning about the medical history promotes the adoptee’s welfare.”  Finally, the court said that Brinker’s need for information about her heritage, to resolve what was then called “genealogical bewilderment,” was also a sufficient reason for unsealing her records. While the court indicated that there may be reasons in other cases to deny a request—particularly in cases of minor adoptees and what she called less “mature” adults, the court erred on the side of Brinker in allowing disclosure.

Judge Green’s opinion at this point was a pure legal victory, if not an emotional and costly triumph, primarily for Brinker but also for anyone else adopted in Washington, D.C.

One sticky issue remained. Having already declared that Brinker was entitled to her medical information as well as to the full names and last known addresses of her birth parents—and that no balancing of birth parent privacy interests was necessary to reach such a conclusion—Judge Green stated that such information would be provided only after an “exploration of the birth parents’ reaction to disclosure of their identities.” This was the kicker, and it remains a kicker to this day, with the courts typically ordering a “search” for birth parents largely in the manner first laid out by Judge Green, namely:

• Ordering the agency to investigate—at the petitioner’s expense—the whereabouts of the adoptee’s birth parents; and
• If birth parents are located, informing them of the adoptee’s petition and determining if they object or agree to disclosure of their identities to the adoptee.

If a birth parent does not oppose disclosure, Judge Green ruled, the name of that birth parent and all identifying information is provided to the adoptee. That is, the court record is unsealed and provided to the adoptee, along with the names and last known addresses of the birth parents. The agency could also facilitate a reunion if requested by an adoptee.

Importantly, though, Judge Green also outlined the procedure to follow when a birth parent could not be found or when a birth parent opposed the release of her identity. In cases where the birth parent could not be found, the court would still “release directly to the petitioner all identifying information contained in the court adoption record for her own individual attempts to contact her birth parents.”

In cases where a birth parent objected to the release of identifying information, Judge Green still allowed the release of the information from the court records, given the clear mandate of D.C. law. Nevertheless, Judge Green would:

permit those parents to appear in camera, either pro se or through counsel, to present their objections for the record. In this event, although the Court must defer to the overriding interest of the petitioner, it will provide her with only the identifying information contained in the court record. It will then be the petitioner’s decision, upon serious reflection, whether to attempt to trace and contact the reluctant birth parent or to respect that parent’s desire for privacy.

Essentially, Judge Green found entirely in favor of adoptees, did not limit disclosure of information, and included a procedure to determine whether a birth parent had any contact preference. This was a forward-looking approach in 1978, a time when courts across the country were rejecting efforts of adoptees to access sealed court records and other confidential “birth record” information. It was also an approach that followed specific and unambiguous D.C. law, unique in the country at the time, which did not require good cause for disclosure but instead allowed access to sealed records based solely on the welfare of the adoptee.

It was a well-reasoned, highly-regarded, and thoroughly supported decision, issued by a judge of eminent standing after three days of intense hearings. Yet something happened over the decades to get us to where we are now, which involves the current opaque process of referral to the agency, followed by that agency’s sole focus on “search and reunion.”

But Brinker’s case—indeed all cases in this realm—are not first about reunion. They are first and foremost about information and identity, and Judge Green got that dead right. While she took into account the interests of birth parents, those interests did not and could not prohibit release of information. Rather, the expressed interests of birth parents help to inform the adoptee of her parents’ preference. If these two cases—Judge Green’s and Judge Epstein’s—are bookends in the court’s history of unsealing records, then Judge Epstein’s is a case that allows for a disclosure veto. Judge Green’s, however, is a case that stresses adoptees’ rights while still allowing a parent to indicate a preference for contact and potential reunion.

So, what’s an adoptee to do? Essentially, how you succeed may require you to remain steadfast and consistent in seeking disclosure, not in seeking contact or reunion. It will also require adoptees to challenge any negative information they may get back from the agency. If the agency comes back with bubkes after you pay a $500 search fee, you have a right to an evidentiary hearing to contest how the agency searched. If the agency comes back with an objection from a birth parent, you can also request an evidentiary hearing to challenge that objection. But it should never reach either of these stages. Rather, if we insist that D.C. courts follow Judge Green’s well-reasoned and thoroughly decided actual decision, you should almost always get identifying information regardless of a birth parent’s opinion. And what you then do with that information, as always, is your own business, informed only by how a birth parent had reacted to the idea of contact.

Stay tuned on this, as my next post will lay out how I approached these issues in my petition and what other D.C. adoptees may want to consider when they petition for their own records.

Postscript/Prescript

Judge Joyce Hens Green is far from a legal lightweight. Two months after the Brinker decision, President Carter nominated her to be on the powerful and influential U.S. District Court for the District of Columbia. The Senate quickly confirmed her, and she presided as a U.S. district court judge from 1979 until 1995, taking senior status then but still presiding over important cases. She was also a member of the United States Foreign Intelligence Surveillance Court, was its presiding judge for five years, and in 2004 was appointed as the coordinating judge for Guantanamo Bay habeas corpus cases. She’s got cred, and she also happens to be a mother of three kids, two of them adopted.

And while normally the names in adoption cases are confidential, we know that the “Female Infant” in the Brinker case was Carolyn A. Brinker. The Washington Post reported on her case and also reported on the successful reunion between Brinker and her mother. The reunion came after the opinion’s release in 1979. In my mind, Carolyn Brinker and Judge Green are unsung heroes in a long and fraught effort to get what adoptees rightfully deserve.