Danny Berler’s case has been decided. I first wrote about it here and, after a summer of legal briefs and arguments, the opinion came out in early August.
At its core, Judge Anthony Epstein’s district court opinion from D.C. does two things: 1) it denies access to Berler’s adoption agency files; and 2) it unseals and releases Berler’s adoption court files. Neither result was surprising.
I’m not particularly surprised by the first result, in which the court ruled that Berler “does not have a right to access the records of the Jewish Social Services Agency (‘JSSA’) . . . .” I’m not surprised because, for the most part, adoption agency records are often the hardest records for an adoptee to get—for a number of reasons, not least of which is that an adoption agency is almost always a private organization, is typically not a party to the court case, and is generally thought to be beyond direct control by the court. It doesn’t mean I agree with the court’s decision in Berler’s case. It’s just that I’m not surprised by it.
I’m also not surprised by the second result, the unsealing and release of Berler’s court records. First, it’s the right decision given D.C. law. Plus, by the time the case came to the court in June, Berler had learned the identities of his parents, and the adoption agency had agreed that the court should release its records.
What’s troubling, though, is that Judge Epstein seems to believe that the records should be released primarily because the adoption agency agreed to their release. In his approach, it appears it was not enough that Berler—and other adult adoptees like him—deserve the court records by operation of D.C. law. Rather, Berler succeeded because the adoption agency had ultimately agreed that the court’s records should be released to him.
The irony in the way Judge Epstein unsealed and released Berler’s court records is tough to ignore, if not impossible to reconcile. While on the one hand the court said that it did not have the legal wherewithal to order Jewish Social Services to release its own agency records to Berler, Judge Epstein certainly acknowledged the agency’s continuing power over the release of the court’s own sealed records. While Judge Epstein determined agency records to be private, confidential, and beyond the control of the court, he simultaneously believed that the court’s own sealed records were subject to the same private adoption agency’s recommendation for or against release. Ultimately, Judge Epstein’s reliance on an adoption agency’s opinion on the issue—and not on the right of an adult adoptee to request and receive records independently of agency consent— demonstrates the breadth of agency power in these cases.
Because the issue over Berler’s sealed court records was resolved by JSSA’s agreement to release the records, no further decision was necessary. Legally, the issue was moot, kaput, over. Nevertheless, the judge plowed ahead with a 54 page opinion about how the D.C. courts generally handle break seal cases and, ultimately, how adoption agency power, combined with birth parent privacy interests, will continue to trump an adult adoptee’s legitimate and basic request for truth. I’ll come back to these issues in more detail in my next post.
The court’s opinion provides some limited statistics that shed light on the typically obscure court process of unsealing court records, at least in the District of Columbia. Judge Epstein noted in his opinion that, from January 2011 through December 2015, adult adoptees (as well as birth and adoptive relatives) filed 638 break seal cases, or about 128 cases each year. In the single year of 2014, for which the judge took a closer look:
134 people filed break seal petitions—130 by people representing themselves and four by people represented by lawyers.
Adult adoptees filed nearly three-fourths of all petitions in 2014. Biological parents (21 of the 134, or 16%); adoptive parents (13 of the 134, or 10%); and a sister of an adoptee (1 of the 134, or less than one percent) filed the remaining petitions.
Only 90 of the 134 cases moved forward through referral to the adoption agency, the process D.C. courts regularly use to dispose of break seal cases. The other 44 petitions were either filed in the wrong court (28 of the 44) or sought a copy of non-identifying information already in the court’s files (6 of the 44).
Of the 90 cases in 2014 that proceeded by referral to an adoption agency, 18 are still considered open, with no results noted. The remaining 72 have been resolved as follows:
Twenty-nine of the 72 cases (40%) led to locating either a birth parent or the adoptee—depending on who filed the petition—and arranging for “mutually consensual contact.” Only if there was consent, however, did anyone receive any identifying information.
Eleven cases (15%) involved an adult adoptee who sought identifying information but the birth parent declined contact. Presumably, and this is not explicitly stated by the court, it meant that neither the court nor the agency provided any identifying information to the adoptee because the agency lacked the consent of the birth parent.
Four cases (5%) involved a biological parent who sought identifying information but the adoptee declined any contact.
Five cases (5%) involved the agency providing only non-identifying information to the adoptee. It is not clear from the court’s opinion why this was not always provided, as it is required by D.C. law if it is requested.
In four cases (5%), the agency could not locate a birth parent or the adoptee. Again, though not stated in Judge Epstein’s opinion, it is presumed that no identifying information was released in these cases.
In six cases (6%), the petitioner decided “not to pursue the case.”
While these statistics are interesting, they are colored entirely by the prism of search and reunion, or what the agency and court refer rather euphemistically as “mutually consensual contact.” Indeed, in the introductory portion of his opinion, Judge Epstein states that D.C. courts have used the same break seal procedure for many years “in cases in which an adoptee seeks to break the seal of an adoption case in order to establish contact with his biological parents.” Scant mention is made of a request simply for information or, more significantly, of the right to obtain fundamental information without seeking reunion. The court dismisses such requests and, in an aside, indicates only that “most adoptees” want to establish contact with birth parents and that a “large majority” of those petitioning want either non-identifying medical information or reunion with their biological parents. Fair enough. But what about many other adoptees, like Berler and me, who seek only their records, who wish only to receive basic information to which they are entitled? What about the correct way to view this, which is a request for knowledge—basic knowledge—and not a request for reunification? For people like us, it apparently doesn’t matter. We are presumed first to be seeking a reunion with our moms, even if those moms are dead or long gone.
The lesson from this is clear. And it is a lesson we learn and relearn all the time, whether implicitly or explicitly: seek reunion and you shall lose. Argue about it all you want to the court and to the state but bring reunion up at your own peril because, once you mention that you wish to find and contact a parent, you will be parceled away into that netherland of requiring birth parent consent before you receive any useful information whatsoever. Berler didn’t bring it up—he argued that he was simply entitled to the records. But he did get somewhat chided by the court for mentioning “possible reunion” in his first break seal petition from 2004. Even the mere possibility of reunion—which is always true no matter your motivation for seeking records or even in thinking about your past—conjurs up that solid and false bogeyman of birth parent “confidentiality.”
In the end, and blessed by the agreement of the adoption agency, Berler received copies of the following sealed records from the court, which are the court’s records from 1964 and 1965:Petition for Adoption of Infant
Consent to Adoption [by the executive director of JSSA] Report of Jewish Social Service Agency
Further Report of Jewish Social Service Agency
Berler also received a copy of the court’s docket sheet as well as prior JSSA reports to the court about the agency’s unsuccessful (and rather dubious) efforts in the last decade to locate and contact Berler’s birth parents.
Only one court record—JSSA’s initial report to the court in 1964—contained any identifying information: the name of Berler’s mother. No other identifying information, and no original birth certificate, existed in the court file.
Though he requested all of his records—and it took a costly two-year legal battle to get to this point—in the end Berler appears to have received a single document containing identifying information about one of his parents. While identity is what almost all of us seek, it shows how adoptees still pay an uncommonly high price to pursue, and get, just a few fundamental pieces of our origin.