I have not yet heard about my long-running fight for my own original birth certificate and records. I expect to get something from the court soon, and I check every day right after I hear the typical clunk of envelopes and catalogs when they land at the bottom of our mail slot.
During my wait I have heard from more than a dozen fellow DC adoptees, including one born in the mid 1930s and one born less than a decade later. For each of these two adoptees, the process of getting their own records is different than mine. And between each of these two the process of finding their own truths is fundamentally different. One is straightforward; the other is not. Both, however, must go to federal court to find out.
While it makes sense in context, it is not well known that adoptions in the District of Columbia were once a federal matter, handled by federal district court judges under the jurisdiction of federally-approved law. This means that judges appointed by the President of the United States once heard and decided cases that determined the fate of infants and other children relinquished for adoption. This federal judicial authority over DC adoptions lasted from 1895 until 1956, which means many of the archived court files of the adoptions are currently —and how cool is this?—filed away in the National Archives.
My own efforts have been confined to a far less prominent and nondescript trial court on Indiana Avenue known as the Superior Court of the District of Columbia. Superior Court is much like any other county or municipal court that deals with county and municipal things: traffic tickets, local felonies and misdemeanors, zoning disputes, divorces, and—since at least since 1956—adoptions. And in my all-encompassing focus to yank truth and records out of this court, I had forgotten and overlooked that other court, literally a walk across the street, which had handled adoptions in the district for more than 50 years.
I was reminded of this when a DC adoptee, whom I’ll call Dave, contacted me in September. Dave was born in DC in the mid-1940s and was already in the process of trying to get his records from U.S. District Court. When he told me this at first, I thought, “Huh, U.S. District Court.” And then it came back to me—of course, federal court! That courthouse in Judiciary Square named after E. Barrett Prettyman, a federal appellate court judge who actually decided adoption case appeals back in the day.
Dave shared his brief story of trying to break the federal court’s seal of adoption and also provided me with some of the correspondence and documents he had, one of which spelled out how the U.S. District Court handles its own break seal cases:
When your petition and the original adoption file have been received, the paperwork will be forwarded to a U.S. magistrate judge for his/her consideration. The magistrate judge will appoint an intermediary (generally the agency involved with your adoption, if there was one) who will be responsible for conducting the research for the court. There may or may not be a cost to you regarding the appointment of the intermediary. Some agencies charge the petitioner while others do not. The order the magistrate judge will issue will address the payment issue, should there be one.
Once the intermediary has developed all the information they can, they will file a final report with the magistrate judge. Upon receipt of the final report, the magistrate judge will issue a report and recommendation outlining their recommendations to a U.S. district judge. The district judge will have the final say regarding what information will be released.
The process generally takes one to two years. The time is dictated, in large part, by how easy or difficult information is developed by the intermediary. The easier the information is to come by, the sooner there will be a final resolution.
This obviously was not great news, as the U.S. District Court appears to follow the same complicated intermediary process followed by DC Superior Court, the court I’m stuck in. And though it’s unclear what is meant by “research,” I suspect that the term relates to an attempt to find a birthparent to ask if that birthparent wants contact. At the same time, however, it provides a separate legal route, this one federal, and opens up the possibility for a different legal result. After all, Joyce Hens Green—who was once a DC Superior Court judge and later became a federal district court judge in the very court where Dave’s case now sits—decided the 1979 case in DC that (at least in my opinion) established an adoptee’s right to obtain court records and identifying information under DC law. In an interview later on in her career, Green specifically discussed the Female Infant case and commented that it was one of her more significant cases while on the bench and was apparently still being used in federal court today.
The Statement of United States Policy
I knew that federal courts were involved in adoption cases back in the day and I had read numerous opinions and appeals that came out of these DC adoptions (like this one in 1955, which overturned the trial court’s denial of an adoption petition in part because the adopting stepfather “is a colored man, while the mother and boy are white people . . . .”). And I also knew that the federal government, through Congress, had overseen adoption law in the district for decades, including issuing legislative summaries like this one in 1937, which outlines the sole purpose of making court adoption records confidential:
(5) Records shall not be open to inspection except upon order of the court.–This provision will protect the adoptee from possible future embarrassment and humiliation which might result from facts concerning his adoption becoming public.
Thus, the United States Congress, after hearing in 1937 from what was then a who’s-who of national adoption experts, endorsed the sealing of adoption court records for the express purpose of protecting adoptees. It was not intended as a way to hide birthparents or to promise anyone anonymity. And, as I will get to a bit later, court records for adoptions prior to August 1937 are not automatically sealed. They are in the National Archives and available upon request—anyone’s request.
While Congress modernized its adoption policy for sealed records 17 years later, it modified it to be even more adoptee-focused. In hearings before Congress in 1954 to consider “modernizing” the district’s adoption law, Congress laid out its overall approach in its own statement of policy:
Section 1. The Congress of the United States hereby declares its conviction that the policies and procedures for adoption contained in this Act are socially necessary and desirable in the District of Columbia, having as their purpose the threefold protection of (1) the adoptive child, from unnecessary separation from his natural parents and from adoption by persons unfit to have such responsibility; (2) the natural parents, from hurried and abrupt decisions to give up the child; and (3) the adopting parents, by providing them information about the child and its background and protecting them from subsequent disturbance of their relationships with the child by natural parents.
In this act, Congress liberalized DC law related to confidential court records by removing a previous “extraordinary good cause” standard for access and replacing it with the current standard: access is provided “if the welfare of the child will thereby be promoted or protected.” The intent of Congress in 1954 was again clear, and the intent again did not involve concerns about birthparent privacy or anonymity. Instead, it involved the sole interest and welfare of the adoptee. As one of the chief drafters of the law stated in Congressional hearings in January 1954, confidentiality was intended for the “protection of the adopting parents from blackmail and security for their adopted child.”
United States Congressional involvement in 1954 was essentially the last time DC changed its adoption law in any significant way. It is the law being followed now in my case, and it is the only state-level adoption law in the country that has been considered, approved, and ultimately enacted by the federal government. It exhibits the only current active federal policy on access to confidential documents in an adoption matter.
I continue stay in touch with Dave and have asked him to keep me informed as his case moves through the federal court’s “research” process and toward a decision. I’m particularly interested in the standard the federal court uses to provide access (or to deny it), and whether it considers release of an original birth certificate (OBC) as a separate matter under DC law, as it legally should be. Whatever the court decides may end up as the basis of a solid appeal to the U.S. Court of Appeals for the D.C. Circuit, which is serious. Imagine an appellate court panel of Merrick Garland, Patricia Millett, and Sri Srinivasan hearing arguments about why adoptees are entitled to their adoption records. It is certainly more than possible.
I learn as much from talking to other adoptees as a I do mucking around in mid-century law books and treatises. The people I talk with keep me honest, connected, and also help me to understand how the issue of seeking your own records plays out in real life. It also helps to build a network of people that inform each other, as I often refer people one to the other. That’s much of the unseen work “behind the scenes” as an adoptee rights lawyer—the connections, the conversations, the trading of notes and stories and cases and circumstances that, over time, may gel and come to fruition in a legal case that will make a difference.
After I heard from Dave, I immediately got back in touch with another adoptee whom, I admit, I had sent off earlier in the wrong direction. This adoptee, whom I’ll call Liz, was born in the late 1930s. She is now in her eighties, and her daughter initially contacted me after reading my post about petitioning the DC courts for your records. Liz’s daughter wanted to know how she could help her mom get her own records, telling me that her mother’s “life is nearing its conclusion, [and she] is consumed by finding out who she is.” She also provided me with a copy of her mom’s only known birth certificate, and I immediately realized Liz was an adoptee whose records may never have been sealed: her only birth certificate was, in fact, her original birth certificate.
All good, except one big problem. DC law for many years had allowed attending physicians and midwives to submit “blank” birth registrations forms when a child was born “illegitimately.” Two other U.S. states had also allowed this practice, and DC law was very specific about it, stating that:
if the child born be illegitimate it shall in no case be necessary for any physician, midwife, or other person to indicate on any report . . . any fact or facts whereby the identity of the father or of the mother or of the child born will be disclosed.
Liz’s original birth certificate appeared to be one of these blank registrations because the certificate had no names. No name of the mother, no name of the father, and no name for the child. Nada. The only slivers of information were the name of the physician and an address where Liz’s mother had allegedly resided at the time of her birth.
I was astounded to see a “blank” original birth certificate for the first time, one that child welfare advocates had railed against back in the day. I was also initially stumped about what to do with it. But, as I normally do, I gave Liz a number of online links and resources as well as the email address and information I have for DC Superior Court and the DC government agencies. I basically sent her off with information on how to petition DC Superior Court. But when Dave later emailed me about his case then pending in federal court, I immediately realized my error: as a 1937-era adoptee, Liz’s records were in federal court. And her records were also likely available upon request. I contacted her immediately and gave her all the information that Dave had already given me for accessing his records.
I just heard from Liz. She first emailed to tell me that she had submitted her letter to federal court and that, shortly afterward, a clerk called her to clarify some information. Upon clarification, the clerk called her back and, voila, told Liz “my name at adoption, my adoption file number and the gentleman to email in the archives dept.” Within two days, Liz received the following email from an archivist in the federal judicial records section of the National Archives:
Attached is a copy of Record Group 21, Records of the United States District Court for the District of Columbia, Entry 73, Adoption Case Files, 1907-1937, Case File ••••, In re Adoption of •••••• ••••••.
Liz had her records, all 9 pages of them. She also had her name, and I cannot imagine her own sense of connection to this earth when a federal court clerk uttered that name. Even when Liz told me this by email, I was so moved myself that I put my phone down and stared into space for what could have been an hour. It is how it should be, I thought, and it is why we all do this work.
Postscript: U.S. District Court
Liz ultimately did not learn the name of her mother, at least not yet. The archived records revealed that she had been born in an infant’s home in DC and that her mother had relinquished her to the home before the adoption. The court record also did not provide a copy of her mother’s relinquishment papers. It only included an affidavit from the infant home representative stating that “the mother of the infant . . . signed a written surrender of tenor heretofore stated” and that the name of the infant should now be changed.
For DC adoptees who were adopted prior to 1956, it is a good idea to write to the U.S. District Court to determine whether or not the court has your adoption court records. You can initially write a letter to request a search for those adoption records. Include in that initial letter your full name, adoptive parent(s) names, and your date of birth, and request that a search be made. If a record is found and you wish to petition the court for those records, it can be done by letter or formal petition. Either approach, however, requires your full name, date of birth, adoptive parent names, and your full address and phone number. You must also state the reason you are seeking your records and have your letter or petition either notarized or signed along with the statement “I declare under penalty of perjury that the foregoing is true and correct. Executed on [Date] and [Signature].” The address of US District Court in DC is:
United States District Court
for the District of Columbia
ATTN: Adoption Records
333 Constitution Avenue NW
Washington, DC 20001
Special thanks to “Dave” and “Liz” for giving me permission to tell their ongoing stories. I especially wish both of them, and all of you, a Happy Thanksgiving.