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Parents Could Access Adoption Records Through Intermediary

By: greg.froom//April 14, 2003

Parents Could Access Adoption Records Through Intermediary

By: greg.froom//April 14, 2003

A Spartanburg County couple who thought their adopted son’s mental and physical problems might be hereditary could have an intermediary review his adoption file for information about his biological family, the Supreme Court ruled April 7.

The adoptive parents showed good cause why opening the files would be in the child’s best interests, the high court said.

The child suffered respiratory problems since infancy and had a cyst on his brain. He also had psychological problems that triggered violent behavior toward himself and others. Several of his doctors and psychologists said they believed his condition might have a genetic basis or could be related to delivery room problems.

The Supreme Court determined that the child’s interest in obtaining his biological family’s medical and social history outweighed his birth parents’ privacy rights.

The justices remanded with these guidelines:

* If the necessary information could not be found in the courthouse records, the adoptive parents could access files held by the law firm that took possession of the child’s files after the attorney who handled the adoption died.

* The Family Court could appoint an independent intermediary to review the files and contact the biological family, if necessary, to obtain the pertinent information. The intermediary would then submit a report for the Family Court judge to review. The report would be redacted so as to conceal information that would reveal the identities of the child’s biological relatives.

The opinion, the first to deal with the subject in 22 years, crafted a well-balanced compromise on the “cutting-edge” issue of access to adoption records, said the adoptive parents’ attorney, James Fletcher Thompson of Spartanburg.

“The decision defines what good cause is to open up those adoption records,” Thompson told Lawyers Weekly. “That definition, based on these facts, is still very conservative — it certainly wouldn’t include curiosity or anything like that. It’s information that would allow the person to live a productive and stable life.”

Thompson said the high court’s finding that the Family Court judge had jurisdiction to appoint an intermediary was significant.

“The beauty of this scheme is that it maintains confidentiality while also granting access to the important medical and social history of the child’s biological family,” he said. “It’s a very thoughtful opinion that balances the important, albeit somewhat competing needs, of all of the parties in the adoption triad — the child, the adoptive parents and the birth family.”

The case is Doe v. The Ward Law Firm, P.A. (South Carolina Lawyers Weekly No. 010-057-03, 11 pages). Justice E.C. Burnett III wrote the opinion for a unanimous court.

Facts

The adoptive parents adopted the child by order of the Spartanburg County Family Court on Dec. 23, 1983. Since then, the child has experienced a series of physical and mental problems.

Soon after he was born, the child began to have respiratory difficulties that still persist. Doctors found a cyst on his brain and he experienced delayed puberty.

When he was six, the child began to have separation anxiety after his adoptive father had a heart attack. The child’s mental health worsened in his early teen years when he began to have severe and violent mood swings.

He had physical confrontations with both adoptive parents. The child once threatened his adoptive mother with a knife and later destroyed the tendons and cartilage in her finger. He also has engaged in self-mutilation and has expressed a desire to commit suicide.

The adoptive parents have sought medical and psychiatric care for the child and he has been committed to mental institutions on three occasions. Despite treatment from a host of psychiatrists, psychologists and neurologists, the child has failed to respond to therapy and has suffered severe reactions to some forms of medicinal treatment.

At a Family Court hearing, the adoptive parents submitted letters from several doctors who suggested that information about the child’s birth family’s medical history would assist in diagnosing and treating the child.

One psychologist stated that he “suspect[ed] that certain inherited predispositions, genetic weaknesses, possible congenital and/or birth delivery toxicity or trauma” may have contributed to the child’s condition.

The adoptive parents asked the Family Court to allow them to view the child’s adoption file held by the law firm. In the alternative, the adoptive parents asked for access to the court’s records.

In either case, the adoptive parents asked the Family Court to have an intermediary review the files and divulge only non-identifying information about the biological parents.

The Family Court declined to require the law firm to let the adoptive parents review the file. The court said it lacked subject matter jurisdiction because it was a contract matter between the attorney and the adoptive parents.

The Family Court also ruled that the adoptive parents had not shown good cause as required by S.C. Code Ann. Sect. 20-7-1780(B). The adoptive parents appealed and the Court of Appeals affirmed.

Holding

The Family Court and the Court of Appeals relied on the ruling in the 1981 case of Bradey v. Children’s Bureau of S.C., 275 S.C. 622, 274 S.E.2d 418.

The Bradey court held that a party could not show the required good cause without a compelling need for identifying information about the biological parents. A compelling need could be demonstrated by a variety of factors including the medical or mental health of the child, or whether not having the information would impair the child’s ability to lead a stable, productive life.

Since Bradey was handed down, the legislature has amended the adoption act. The amendment says that when “the interests of a child and an adult are in conflict, the conflict must be resolved in favor of the child.”

“Accordingly, we are presented the task of determining whether the [adoptive parents] presented ‘good cause’ why releasing such information would be in child’s best interests,” Justice Burnett wrote. “The [adoptive parents] have done so.

“Apart from child’s physical difficulties with respiratory problems and a cyst on his brain, the [adoptive parents] have demonstrated the need to obtain the information for child’s mental health,” he wrote.

The child’s behavior indicates that he is dangerous to himself and to his family, the Supreme Court said.

“Having shown that it is in the best interests of their child to obtain these confidential records they are entitled to view ‘all papers and records pertaining to the adoption and filed with the … clerk of court,'” Justice Burnett wrote.

Law Firm Files

The Supreme Court said the law firm could be required to open its files if it were shown to be in the child’s best interests.

“Absent any statutory limitation on this court’s ability to compel law firm to release its adoption file, the intent of the legislature in such circumstances is that, in the face of competing interests, the best interests of the child be the paramount concern,” Justice Burnett wrote.

“The [adoptive parents] have shown good cause why the release of law firm’s adoption file is in child’s best interests,” he wrote. “Therefore, the [adoptive parents] may obtain information contained within law firm’s file if a search of the clerk of court’s files does not reveal the necessary information.”

Intermediary

The appointment of a third party to review the file and act as a liaison between the court and the biological parents would serve the interests of the child while preserving the biological parents’ privacy rights, the high court said.

“By appointing a trained, confidential intermediary to review the file, contact the biological parents, if necessary, and prepare a report for the Family Court’s review, we fulfill the child’s best interests while maintaining the privacy of the parties to an adoption,” Justice Burnett wrote.

The intermediary’s report would provide the pertinent details, but it would be redacted to prevent any information that might reveal the identities of biological relatives, the court said. A Family Court judge would review the report to make sure that it contains the necessary information while also concealing the biological family’s identity.

Questions or comments may be directed to [email protected].

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