Here’s Part One of our endless series of Useless Products You Never Knew You Needed. Illustrations by August, descriptions by both of us.

Sandwich Balls®

Sandwich Balls® are highly compressed food products that are ball-like. They are fully functional and complete sandwiches compressed into mobile-friendly balls the size of large kumquats. Pop a Sandwich Ball® into your mouth and lunch becomes an uncomfortable bready lozenge to suck on or chew. Better yet, roll one across the table or down the hall to share with a friend. It’s a donut hole, not yet fully evolved.

Zotzgütter®

Don’t like malic and tartaric acids mixed with sodium bicarbonate? Is caustic brine not your desired mouth feel for candy? The Zotzgütter® will remove the inside of a Zotz, sometimes without harming the protective outer shell. It then stores the malic and tartaric acids for later use, though no such uses have been found. Pro tip: pronounced “zahts /goo/ ter.”

Stay tuned for more, including the LoafDigger®, an Anti-Gravity Blanket®, and a fully functional Waterproof Towel.

The post Useless Products You Never Knew You Needed appeared first on gregoryluce.

The Takeways

Here are the big takeaways. While there were some other fairly wonky statutory interpretation issues, I don’t include those here.

• The appellate court reiterated and affirmed the purpose of sealing records, stating that it is “primarily intended to protect the privacy interests of adoptees. . . . Such privacy interests surely persist into adulthood.” (citation omitted).
• The most important consideration in releasing records is “whether disclosure would be in the interests of the adoptee.”
• Birthparents have “no absolute right of privacy” in relation to releasing sealed OBCs or court adoption records in DC. Birthparent interests may be “relevant” but—consistent with the intent and scope of DC law—they cannot be a deciding factor.

What Does It Mean?

At its core, the decision eliminates consent of birthparents as the deciding factor when a court in the District of Columbia decides whether to release court records or the original birth certificate to the adoptee, particularly when that adoptee is now an adult. Prior to this decision, the DC Superior Court had relied entirely on an adoption agency or intermediary to search for and obtain consent of birthparents, largely within the context of contact between the parties. The court of appeals in my case has now rejected consent—as well as birthparent privacy— as “dispositive factors” in future break seal petitions. While the court did not dismiss birthparent concerns or interests, it indicated that such interests are only “relevant” to the overall decision. The court’s final decision, however, remains focused on the paramount interest of the adoptee. Moreover, as the court stated:

[a]t least barring unusual circumstances—a trial court will have no reason to doubt that disclosing an adoption record would be in the interests of the adult who seeks disclosure of his or her own adoption record.

The decision shifts the framework for current and future petitions to disclose, which will focus on the paramount interests of the adoptee (which is what I had argued). How that plays out is not yet determined, so it’s not all rosy unicorns and fireworks right now. The case has been remanded to the trial court, which has already set a hearing in March to reconsider my request (which at this point is for an unredacted OBC as well as copies of the court records). I’ve also been ordered to notify all those “affected” by the disclosure of my information and am working on a response to the court on that issue, as that requirement at least includes my birthfather, with whom I have already been in contact. Obviously, it’s a loaded issue to serve a birthparent with legal papers, so I’m considering options. I will comply with the order, but at least he deserves a heads up.

Does this Mean I Get My OBC?

Does this mean that adult adoptees can now petition the DC Superior Court (or the US District Court for pre-1956 DC adoptees) and get your records automatically? No. It means that the focus has shifted away from birthparent privacy and interests and shifted back to the adoptee. How that now works out in practice is the next process to determine, and it may happen in my case or it may take subsequent cases to hone the procedure and to determine the full scope of our own rights to our own records. That’s how litigation works.

Finally, a constant reminder and an important call to action: this is a court decision that interprets current DC law. It is not legislative action that changes the law. For that, I’ll have news soon on initiating and supporting legislative efforts in the District of Columbia and it surrounding states. If you want to be notified or get involved in those efforts, sign up now with Adoptees United Inc., a new national nonprofit of which I am a part. It will get you plugged into the action.

It’s been a long time since I had posted here on my personal blog. I hope it will be less time between now and my next post—and I hope the news will keep getting better, in DC as it already has in New York. Hang tight.

The post Things Are Gonna Change appeared first on gregoryluce.

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.

Dave

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.

Liz

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.

The post When the Feds Did Adoptions appeared first on gregoryluce.

Do you have any supporting documents that can verify that you had a relationship with your birth mother?

The irony of such a question is not lost on me, and it is probably not lost on an adoptee who has ever thought about what a birth parent relationship means, not to mention how such a relationship can be documented or proven. Put that irony aside for a moment.

The question from the social worker is, in truth, a bit more subtle. What she has really asked is whether my mother would agree to release my adoption files. That is, do I have documents to show that my mother would want me to have them? Even when I rephrase it this way and provide more context, the question still hangs in the air and lingers.

My birth mother died sixteen years ago today. I was with her when she died, with her when she took her last breath, with her and among her family—my birth family—as we watched her die at 7:07pm, March 14, 2001, at her home in south Florida. She was 54. I never forget this day, nor the days that lead up to it. And it was in these days, just before the anniversary of her death, that the social worker requested my supporting documents.

The truth is, I have thousands of these documents because, after my mother’s death, I inherited all 54 years of her life. I have dozens of her knick knacks. Hundreds of photographs. A red lobster puppet. Children’s books. Handwritten letters to her from my father, who was a teenager at the time but only a few years away from my mother’s pregnancy. I have twelve hand-written journals, beginning in 1979 and ending in 2001, just before her death, one of the last entries stating “I cannot be perfect, nor close to it.” I have her brunette wig, pages of mundane shopping lists, a small notebook with every bearing she took on a 1982 trans-Atlantic sailing trip from Denmark to St. Bart’s. In a tin box on my desk right now are three post-it notes:

God please take this fear from me

God help me have the courage and strength.

God please remove the cancer from my physical being. Help me be truly well and healthy.

Under my desk is a box with every year of her school records, from kindergarten at the Open Air School in Florida to a master’s degree at the Rhode Island School of Design. I have all of that and more. I have it because I was her only child and, because we were close enough at the end of her life, she believed I could also be an historian and archivist, and that I could also carry on as a son.

What seems to matter now, at least what seems to matter legally, is whether I have proof to convince a judge of such a relationship. The question asked by the social worker, ordered by a judge, is really about an adoptee’s level of proof of who and what they are. It also asks a son to produce what he may still possess of a parent’s beliefs. So, in the end, what do I send? What exactly do I show?

As I tell people when they ask, I knew my mother for less than six months, which—I’m also quick to note—includes what may have been seven days with her in a Georgetown maternity home. During my life I knew that I was adopted, and I obviously knew that she existed, but I did not know who she was exactly until October 17, 2000, when I was thirty-five. She died 149 days later.

As proof of my relationship, I could send in the various details of those 149 days, few of which we were actually together. I could send in photos of us at a beach in Florida, maybe the receipt from a kayak trip near Sanibel Island. Perhaps greeting cards she sent, pictures that I sent to her, a memory of her telling me on the phone that, because of health, she had to cancel a visit to Minneapolis, where she was to see me and to meet her grandson for the first time. I could send in a copy of her obituary, where I could point to exactly what it says, right there: “She is survived by . . . her son, Gregory Luce; her grandson, Max.”

I could send in the messages she left on my voice mail, messages I still have, her voice high and the breathing slightly labored, the effect of an oxygen pump you could barely make out in the background. On one she says, “Hello, it’s mom from Florida,” and then wishes us all a happy New Year. I could digitize the one videotape I have of us, a scene from decorating a Christmas tree, me hanging the ornaments, she handing them to me because she was too tired by the end of the day to do much else. I could send in the wig that she wore. Or a photo of her without it, bald, when in the short time we knew each other it had become acceptable to see each other’s own truth.

Are any of these enough? I don’t know.

Sixteen years ago my birth mother died while sleeping under a white and pink-flowered quilt she had purchased years earlier at a New Hampshire craft fair. That quilt is now in my house, on an antique rope bed that she owned, the bed my older son now sleeps in.  The quilt is his favorite blanket, and he sleeps under it and we occasionally use it for picnics. It is worn, heavy, and it is used, showing in its corners and seams threadbare evidence that it has become not only a memory but also a well-worn part of our lives.

If I could do one thing to show the agency my mother’s relationship with me, it would be this: I would fold the quilt into a square, put it carefully in a box, and send it across the country to the social worker at my adoption agency in Washington, D.C. I would also pin a note to the quilt. The note would say only this:

District of Columbia Department of Health
ATTN: Vital Records/Birth Certificates
899 North Capitol Street NE
Washington, DC 20002

The post Do You Have Any Supporting Documents? appeared first on gregoryluce.

That caveat is this: watch out for missing asterisks.

Let’s take Indiana over the last several years. Indiana HEAR, an advocacy group, fought for years to open that state’s closed records, primarily for adoptees born prior to 1994. It was a solid fight, and HEAR recently got results: a bill signed by then-governor Mike Pence in 2016.

HEAR, though, got a bit dodgy in its press release in describing what the new law did:

Today Indiana’s adult adoptees have achieved a reality that’s taken years to accomplish—equal access to the most basic parts of their identity. Governor Mike Pence signed Senate Bill 91 into law today, making Indiana the 14th state to give adult adoptees from the “closed records” period access to their original birth certificate and adoption records.

All true,* but there are a few asterisks missing. To help you understand what I mean, I’ve rewritten it to supply what’s needed:

Today Indiana’s adult adoptees have achieved a reality that’s taken years to accomplish—equal access* to the most basic parts of their identity. Governor Mike Pence signed Senate Bill 91 into law today, making Indiana the 14th state* to give adult adoptees* from the “closed records” period access* to their original birth certificate and adoption records.

Here’s what those asterisks mean, in the fine print that is not specifically disclosed: “‘Access’ to your birth certificate is subject to birth parent approval or, absent approval, proof that a birth parent is dead. Indiana HEAR makes no representation that access is equal for all. Indiana is not one of the seven states allowing unrestricted access to original birth certificates.”

A lot of advocates omit such inconvenient details when describing their legislative efforts and accomplishments.

Take a Missouri organization as another example. It lobbied the Missouri legislature last year and ultimately came out with passage of an “adoptee rights” bill. Here’s how the Missouri organization now explains the new law:

August 28, 2016[.] The Missouri Adoptee Rights Act will go in effect. Missouri born adopted adults will be allowed to receive a copy of their own original birth certificate without ​a court order.

Here again are the missing asterisks:

August 28, 2016[.] The Missouri Adoptee Rights Act will go in effect. Missouri born adopted adults will be allowed* to receive a copy* of their own original birth certificate without ​a court order.*

And here’s what those asterisks mean: “Receipt of an accurate copy is dependent on the wishes of a birth parent. Please note that you may not receive a copy at all, even after a parent dies. You may also get black boxes that eviscerate the identifying information that would normally be included on a birth certificate.”

Worse, the Missouri folks supply a FAQ section on its website, but it initially only addressed birth parent concerns (since deleted) and the timing of access to OBCs (2018, for most adoptees). The FAQ even reiterates that “birth certificates will become accessible without a court order on January 2, 2018 for those born after 1940.” Yeah, except this is also missing an asterisk or two. You would think the biggest losers from this legislation—adult adoptees who are not provided access—would get at least some truthful and factual information about restricted access. You would think that adoptees—all adoptees—are entitled to that truth, especially from those who claim to be their advocates.

No big deal, right? No, it is a big deal. Remember that these organizations requested our support and promised that their bills would give us access to our birth certificates. In these states the bills are often “clean” when introduced, meaning that access at the time of introduction was “unrestricted access”—no vetoes, no misguided and misnamed “contact preference forms,” no black boxes. But what those organizations do not tell you is this: there is no plan to fight a bill that goes south, that gets amended quickly to include dirty provisions, such as disclosure vetoes or redaction. Rather, bills now seem to be introduced with the full expectation that they will be amended with restrictive black box provisions, and there is no articulated plan to fight that. There is no strategic red line to say “nope, we won’t go there.” It’s as if advocates shrug and say “oh, well.”

Failure to effectively strategize—and a failure to acknowledge the truth of what these new laws do—make one thing clear: if advocates are willing to paper over redactions and vetoes, then redactions and vetoes become the default for all future legislation. If, for instance, we advertise and celebrate that Indiana and Missouri are now open states*—without mentioning restrictive provisions embedded in the law—then it upends the narrative for what is considered open. Open is not actually open; or, more accurately, closed is the new open. That’s nuts.

In the last few weeks, a new law in New Jersey went into effect that provides limited access to original birth certificates. You wouldn’t know that from the advocates’ website, though, which makes no mention of the actual redactive power of the law. Indeed, in answering a FAQ entitled “What exactly will I receive?” the New Jersey CARE website states:

You will receive a non-certified copy of your original birth certificate on file with the Office of Vital Statistics and Registry. If your birth parent(s) submitted a contact preference and family history information, you will also receive a copy of that information. You will receive your documents by postal mail.

Sure. But while the law does open up access to almost all adoptees, it keeps access permanently closed for others. Exactly 550 others, whose parents chose to redact their information. But you wouldn’t know this from the NJ Care website. You are not told that you may be one of the 550 adoptees who will receive either 1) nothing or 2) a piece of paper with a portion of your identity wiped out. Those are the missing asterisks that you deserve to know. We all deserve to know, now and at all times.

I wrote to NJ Cares about its misleading information and received a response promising to “work on getting the word out more clearly.” I also wrote to advocates in Missouri and Indiana. I did not hear back. My guess is that it’s a tad inconvenient to tell the full truth, either now or—more importantly—at the time of introducing their legislation.

We’ll see if truth and accuracy will at least be acknowledged up front in future efforts, a minimal expectation when asking for adoptee support. In the interim, beware what is promised. It may sound great, but ask specifically about the plan once things start rolling. If there is no plan, no strategy, no commitment to fight for a clean and unrestricted bill, then you might want to carry around some asterisks to remind people that what you are promised in the beginning may not in any way be what you get in the end.

The post The Missing ** of Adoptee Rights appeared first on gregoryluce.

Except the punchline in this venture appears to be serious. And the punchline is this: swipe right if you are interested in a baby, swipe left if you are, well, not so much. As Adoptly’s marketing director says, swiping for children is “easy, intuitive, and even a little fun.” Take a look yourself.

At least one tech blogger has already blasted Adoptly’s Kickstarter campaign and has essentially condemned it, not only criticizing the unnecessary Tinder-like UI function but also expressing a sense of “overall wrongness” for the service. Another blogger isn’t sure it’s real, calling the Adoptly video and setup “indistinguishable from parody” and questioning if the reps in the video are actual people, let alone Adoptly employees. And some now think that Adoptly may be a fake app along the lines of a prior app called Pooper, otherwise known as “Uber for dog poop.”

Update: While not confirmed, I’m fairly certain Adoptly is a hoax. Or, if it is real, it should obviously be a hoax, for the reasons I outlined below in my original post. In addition, there is absolutely no social media presence for the company, the only company registration is for a defunct LLC in Colorado (not in California, where Adoptly claims to be based), and none of the alleged principals in the company have any actual online presence.

I honestly don’t know what to make of it, largely because—if it is real—it is but one example of the continuous commodification of adoptees. And there’s a long history of that, from babies being displayed in store windows in Washington, D.C., to Georgia Tann’s stolen babies being splashed across the front page of newspapers as part of her annual Christmas adoption appeal. International adoption agencies fare no better (if not a lot worse), and even AdoptUSKids, backed by the U.S. Children’s Bureau, maintains online children’s profiles from which to “choose,” though these are of much older kids in foster care, suggesting at least some agency of the kids themselves.

Ultimately, Adoptly appears intended for potential adoptive parents who, it can only be assumed, maintain a strong millennial gestalt and don’t like the complex slowness of getting a child. Except that those complexities are built-in and, from what I can tell, not diminished by online or mobile search apps. You still need a background check. You still need to be approved. All adoptions, at least as promoted by Adoptly, occur only through government-licensed adoption agencies. Which begs the question: how does a Tinder-influenced swipe function speed up that process, except maybe to make it “fun?”

That’s the rub, and I actually don’t see Adoptly as an adoption-related Tinder knockoff, other than its rather creepy swipe function. Ultimately, it may signal a shift toward a model like Uber. And that may be the ultimate problem. While implying the app makes adoption “easy, intuitive, and even a little fun,” it’s potentially an unacknowledged swipe against regulations that protect birth parents, adoptive parents, and children. And while Adoptly says it plans only to facilitate fully-licensed adoptions, I don’t foresee how a future of Adoptly-related knockoffs will maintain such an allegedly pristine purpose. In that respect it’s really nothing new, but rather an update on a business model that has existed since at least the days of brokers and babies in downtown storefronts. If, of course, it’s actually real.

The post Parenthood Is Just a Swipe Away? appeared first on gregoryluce.

But, a few major points and an important disclaimer before I get to the nitty gritty.

First, and I cannot stress this enough, it’s a terrible strategic move to ask directly for reunion or contact through the D.C. court petition. As I’ve repeated before ad nauseum, search and reunion is distinct from your right to receive identifying information. If you seek reunion, you may sidetrack the court and get nothing. If you focus only on identifying information, you stand a much better chance of actually getting that information. And what you then do with that information is simply a different question. Capisce? No? If you don’t understand, re-read my prior post here.

Second, it will be expensive. The court’s filing fee is $80, and the “search” fee charged by the agency is typically $500 (except in some limited circumstances, by D.C. regulation it cannot be more than $500).

Third, if you haven’t figured it out already, getting your adoption records is not automatic, nor do you have an unrestricted right to get them. The court currently requires a petition and, as part of that process, referral of the case to your adoption agency. After that, it’s kind of a crapshoot as to what happens, depending on who presides over your case. That’s mostly what I covered in my earlier post.

Fourth, it may take a long time, perhaps up to a year. More likely, it will take several months. So, be prepared to wait.

Fifth, the court’s adoption records will rarely if ever include your original birth certificate. The OBC is typically on file with the District of Columbia Department of Public Health, which requires a court order to release it. While the court’s form does not specifically contemplate asking for your original birth certificate, it doesn’t hurt to include a request in the petition. In fact, it’s probably wise to do so.

Finally, I’m a lawyer but not yours. If you need legal advice or help drafting your petition, hire an attorney. If you can afford it, it may be well worth the cost of getting independent advice and direction. That said, the required court forms are not hard to complete, and I’ve provided my own sample petition as an example. You can follow my example or not—your choice. It is simply an example from 1) an adoptee who is going through the process himself and 2) an adoptee who also happens to be an attorney. So here goes.

Court Petition: The Basics

The D.C. court provides a fillable PDF and packet you can review and use to complete a break seal petition. The petition is here, and you can fill it out, print it, and file it with the court after you sign it in front of a notary (and enclose the fee). But, a huge caveat. The court’s form tries to pigeonhole you into specific reasons to get your records, namely for medical information or “to establish contact with the birth parents.” The form does include an option of “other,” but the focus on contact and reunion with a birth parent is abundantly clear. Avoid being pigeonholed. I avoided it by creating my own form, and my annotated sample, in Google Docs, is here. I’ve commented on the form itself. I’ve also included a summary of those comments below.

Case Title. Include your full name, as it was at the time of adoption. It is key to include your name as it was back then, not a new name now or a married name you may have taken later. The court must link your initial adoptive name to the court file.

Adoption Case Number. You may not know this number, which was assigned at the time your adoptive parents filed their petition for adoption way back when. No worries. You should be able to get it from the adoption agency, which I did back in 2000. If you cannot get it, no sweat. As long as the name on your petition matches your name at the time of your adoption, the court should be able to find your original adoption case number.

Adoption Agency. The court needs to know the name of the adoption agency that handled your adoption so that it can refer the matter to that agency for a “search.” Hopefully, you know this. If not, the court should still be able to find it by matching your name with existing court records. Also, be aware that many adoption agencies back in the day are no longer in operation. Before closing up shop, they were required to transfer their files to another agency still in operation. That’s why I have two agencies listed on my own petition. I’ve been told the second agency has my file. Fingers crossed.

You. This is easy. Give the court your full name, address, and phone number. For good measure, I also included my email address.

Date of Adoption. List the approximate date of your adoption. This one confused me a bit because an adoption often does not become final until months after you are born. Luckily, I had a copy of my interlocutory decree, the temporary order issued to your adoptive parents a few months after they file for adoption. That order stated my adoption would become final on August 1, 1966, so I used that date. But if you have your adoption case number already, the court will be able to find the exact date of your adoption in the court records.

Adoptive Parents. Hopefully you know your adoptive parents’ names and dates of birth. I’m not sure what to tell you if you don’t.

Birth Parents. Obviously, most folks do not know this, which is the reason you are filing a petition. If you do know them, list them. If you do not, simply say “Unknown.”

Court Petition: Advanced

The final two questions on the petition are a little more complicated to work out, not because they are difficult to complete but because they make up the petition’s raison d’etre. Y’know, the whole shebang. That is, the questions that tell the court your what and why. The first question simply asks you to complete the following:

I am seeking the following information from this petition:

The court’s own form gives you three options to check: 1) medical information; 2) contact with the birth parents; and/or 3) other. Again, the court tries to limit your reasons to two primary things: medical info or reunion. And again, proceed at your own risk if you choose reunion. It’s largely a misplaced reason because it leapfrogs over a more nuanced and central reason, at least for me: you want information about your origin and identity. And what you do with that information and knowledge, once you have it, is up to you. That is, if you get it and then decide to ask the adoption agency to facilitate a reunion, all the power to you. That’s what those social workers are there for.

For my petition, I had also prepared a lengthy memorandum of law and my own affidavit, so I simply referred the court to those by saying “See Petitioner’s Memorandum of Law and its request for relief, along with supporting affidavits and documents.” But what if you want to include everything in just one form, without the need for a separate memorandum of law and affidavits? That’s up to you. But, to understand it a bit better, here’s what I said in my memorandum:

Petitioner, an adult adoptee, seeks the following relief:

1. An order directed to the District of Columbia Department of Health ordering it to unseal and to release to petitioner a copy of petitioner’s original birth certificate; see, In Re G.D.L., 223 A.3d 100 (2020);
2. An order unsealing the adoption records and papers in this proceeding and allowing petitioner to inspect and request copies of those records, pursuant to D.C. Code § 16-311 and In Re G.D.L., 223 A.3d 100 (2020);
3. An order directed to the original child-placing agency in this matter, or its successor in interest, to allow petitioner to inspect records from petitioner’s adoption agency file and to request documents from the file that do not abridge any legally defined and recognized right of an individual’s confidentially in the records

Whew. That’s a fair bit of legalese. But I’m an attorney who needs to think through all of the issues as well as any potential for appeal. I was also careful to ask for information from three separate “repositories,” each of which held identifying information but was reasonably subject to court control: the department of health (my OBC); the court (my court records); and the agency (my adoption records). I also did this because each one of these repositories has a slightly different legal standard for release of its records. Which may explain why it took me 35 pages in a separate memorandum to lay it all out.

So, what to request? Again, it’s up to you. If you want all of it, ask for all of it, but be specific as to which records: your original birth certificate, your court records, or your adoption records. And keep in mind that the court’s records are likely the most directly applicable and, relatively speaking, more easily obtained. The court, after all, has direct control over its records. In fact, I cannot realistically imagine asking for your OBC or agency records without also asking for your court records (unless, of course, you already have those).

Finally, the last part on the court form states: “If there is any additional information you would like to provide, please do so here. Attach an additional page, if needed.”

I consider this the “why” question, as in why do you want your records? As I did with the prior question, I referred to my affidavit and other submissions, which explained my own reasons in significant detail. If I could distill those reasons down to a few key words, I’d get this: I wanted proof of my birth to my first mother, and I needed to know if I had another name, my first identity. I also wanted to know how the process of my relinquishment and adoption unfolded, clouded by now because I was seven days old at the time. Essentially, I wanted to know the full extent of my origin and identity, the same as almost all other people in the world and the same as Carolyn Brinker, the adoptee who requested and got her identifying information from a D.C. court in 1979. Indeed, this is what was said in 1979 for Brinker’s reasons to get her own records:

that she has desired to know the identities of her birth parents and siblings since her early teenage years; that the lack of knowledge has left her with feelings of emptiness and confusion concerning her identity; that she is concerned that possible hereditary diseases or conditions could affect her children; and that her adoptive parents have shared with her all of the information in their possession concerning her adoption and fully support her efforts to learn the identities of her birth family.

Hopefully, you understand your own reasons. If you don’t, I’d think twice about petitioning the court. It may not be wise to do so without at least some articulable reason. This process is not the same as requesting an original birth certificate in a place where you have an unrestricted right to get one. In those states, mere curiosity is fine, irrelevant actually. Here, before the court, expressing mere curiosity may hinder any success.

Finally, I’d attach the most recent decision on this issue from the D.C. Court of Appeals. It’s here and I discuss it in greater detail here (it’s the case I brought for myself).

Also, don’t forget to include a money order for $80 (yes, a money order) and send the form and any attachments to the court, at the address listed here on the court’s PDF form. The court should send you a receipt in the mail, which shows that it was successfully filed.

I cannot predict what will happen, with your case or mine. It’s actually not a good idea to guess on outcomes of cases. With the recent case of In Re: GDL, I believe the law is on our side. But that does not mean a different judge will agree. You will have to make your own decision to file, based on all of your information as well as the risk, cost, and potential disappointment.

If you petition the court, I’d love to know. I want to continue to follow how the court handles and resolves these cases after a recent decision. In addition, it would be good to monitor how the court handles these cases and build a decent library of decisions and approaches so that we can better advocate for positive results.

Best of luck. Really.

The post Petitioning the D.C. Court for Your Adoption Records appeared first on gregoryluce.

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.

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I am asking that you pardon someone who is a direct descendent of others who ‘broke’ bad laws, people like Sojourner Truth, John Brown, Susan B. Anthony, Lucy Stone and many others. The laws Ms. Musser circumvented will one day be seen as no more than a failed social experiment. She deserves your presidential pardon.

Oh, please. I don’t doubt that Sandra Musser is a dedicated adoption reform advocate. But she got caught knowingly taking advantage of illegal search methods to find adoptees and birth parents. Despite all the tortured civil rights rhetoric she and others have used to describe her plight, she is not a civil rights hero.

A little background for those who don’t know the story. In the late 1980s, Musser created a for-profit business called the Musser Foundation. It provided adoption reform resources, sold books, and organized adoption rights support groups, but it also offered paid search services to adoptees and birth parents. Indeed, the Musser Foundation’s primary revenue came from these searches, which cost up to $2,500 each. A Musser Foundation brochure and handout from 1990 highlights its successes, listing more than 130 successful reunions and boasting of an astounding success rate of 95 percent.

The charges against Musser grew out of a lengthy undercover operation that originated in New York and documented how Musser and one of its hired “searchers” fraudulently obtained private and confidential social security data on adoptees and birth parents. The method was obviously illegal but fairly straightforward. A client would hire the Musser Foundation to find a birth relative. Musser would in turn contract with an independent “searcher,” who in this case was Cleveland-based Barbara Moscowitz. Moscowitz would, as part of her work, use phony names and identities to call health departments, hospitals, and social security field offices, requesting and often unlawfully obtaining addresses, employment data, and social security numbers on individuals. Moscowitz would then turn that information over to Musser, and Musser would pay Moscowitz $100 for each social security number she secured and up to $1,000 per client for overall search work. Musser would then charge her clients up to $2,500 each, typically payable upon a successful search, and presumably reunification would follow.

For the record, my mother was a Musser Foundation client. I have the paperwork my mother completed in 1990 to initiate her search, which was apparently successfully completed in December 1992. But for reasons I have yet to figure out, it appears my mother never paid her balance, a requirement before receiving search results. When my mother called Musser at the end of March 1993, perhaps to inquire about payment, it was three days after federal authorities had issued the 39-count indictment against Musser and Moscowitz. I can only presume that my mother was uneasy paying the remaining balance of $2,350 when the business she had hired was under federal indictment. Or that she didn’t have the money. I don’t know the circumstances. But I can also reasonably presume that the same illegal methods used to find others were also used to get data about me and possibly my adoptive parents. Whatever was discovered, it was likely sitting in a file in Cape Coral, Florida, awaiting full payment.

The indictment against Musser and Moscowitz included charges of wire fraud, conspiracy to commit wire fraud, and theft of government property. In a deal with prosecutors, Moscowitz pled guilty to and ultimately testified against Musser. Musser pled not guilty and claimed that she had no knowledge of Moscowitz’s criminal activity and that, even if she did, her actions were justified on account of “bad laws” that had led to sealed adoption records and birth certificates. The case went to trial in the fall of 1993, and the evidence included taped conversations between a New York undercover investigator and Musser and Moscowitz. Ultimately, the jury found Musser guilty on most counts, including conspiracy to defraud the United States; aiding and abetting wire fraud; and aiding and abetting theft of government property.

At sentencing, Musser continued to appear defiant, stating first that she was innocent but then implying that her actions were justified. In light of Musser’s conflicting position on her own actions, the court felt compelled to order her incarceration:

What you have said today is what you said during the trial. It is a sense of saying: I know that the law existed and I feel that it must be changed. And in changing it, if I must violate it to change it, I will violate it. There is no sense of what we sometimes refer to as remorse for having done so. You have felt apparently yourself justified. So that no matter whether the court accepted the guideline analysis of your attorney or the government’s, the court still feels that jail time —a jail sentence of incarceration is well in order in this case.

The court also clarified with Musser that her sentence related only to the “activity in intruding into the privacy of the Social Security files. Although your feelings are very strong ones, there is I’m sure an equally strong view that those records should be kept silent, and the United States Congress has agreed with that view.”

The court sentenced Musser to four months in federal prison and banned her from doing adoption-related work for three years after her release.

It’s hard to tell if Musser continues to dispute the facts of her case—particularly now that she seeks a presidential pardon. Written guidance about seeking a federal executive pardon advises petitioners that:

it is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. A pardon is not a sign of vindication and does not connote or establish innocence. For that reason, when considering the merits of a pardon petition, pardon officials take into account the petitioner’s acceptance of responsibility, remorse, and atonement for the offense.

It’s unclear what responsibility Musser actually takes for her actions and what remorse, if any, she now feels. In various accounts, including on her website and in a book she wrote about her case, she seems coy with details about what she actually knew and did, typically only referring to the government’s “indecent indictment” against her but then stating that she was guilty solely of the “crime of reuniting families.” She also claims at times that she was innocent and had no idea that Moscowitz was illegally accessing social security files (though given the evidence at trial, as well as the jury’s verdict, it is hard to believe those claims).

More recently, and in support of her petition for a pardon, friends and advocates are now adamant that what Musser did should be forgiven because, in part, her means in breaking the law justified the ends. In essence, her supporters believe that, despite knowingly breaking the law, Musser was justified in doing so because her efforts ultimately led to reunification of birth families.

There are a number of problems with all of this, both in reality and in the context of seeking a presidential pardon. First, the law that Musser broke was related to federal social security data, not adoption records. Musser was not a court clerk who knowingly, illegally, and surreptitiously disclosed birth parent names to an adult adoptee. She was not a health department worker who released records deliberately in violation of the law. She did not steal sealed birth records. Rather, she broke a federal law that secured the privacy and confidentiality of individual social security data. How that law is flawed or bad is a bit hard to figure.

Worse, some advocates are now characterizing her actions and her crime as a form of civil disobedience, stating that what she did—i.e., break the law—was morally right in light of the “bad” adoption laws of the day. Lorraine Dusky, for example, claims that Musser is a “direct descendant” of people like “Sojourner Truth, John Brown, Susan B. Anthony, Lucy Stone and many others.” Jane Edwards, Dusky’s cohort on the First Mother Forum blog, claims that Musser’s pardon request is similar to pardons “for civil rights activists who went to jail for violating segregation laws.”

Again, Musser didn’t break an unjust law. Plus, she was being paid for her work. More significantly, these arguments misrepresent the nature and price of civil disobedience and also over-represent what Musser intended and accomplished. Civil disobedience, by definition, means that you are willing to pay a price for your actions and that, despite laws that you believe are unjust, you are willing to break them and bear whatever legal cost accompanies that action. It is a deliberate and necessarily political choice and almost always anticipates a penalty you are willing to bear, however unjust that penalty may be.

Last I looked, Susan B. Anthony was convicted of casting a vote in New York while also being a woman. Rosa Parks refused to give up a seat on a Montgomery bus and was arrested, charged, convicted, and compelled to pay a $10 citation. Neither woman was pardoned, nor did either one seek a pardon. And, unlike Musser, neither woman had been paid for breaking the law. Anthony, Parks, Stanton, King, all of them and others, knowingly and deliberately broke the law because they were willing to carry with them the weight of a penalty that followed. Musser, by contrast, continues to proclaim her innocence, something that is incompatible with an argument that her actions were deliberate, political, unlawful, and knowingly done despite the likely result of arrest and conviction.

Again, I don’t begrudge a person’s request for a pardon. If they deserve it, they should get it, and from all that I can tell, Musser has suffered on account of her crime and has lived through a number of struggles throughout her life, all of which she writes about in her books. I honestly wish her well and do not intend to be mean in highlighting the facts of her case.

What I begrudge, though, is the manipulation of civil rights rhetoric and a failure to acknowledge what Musser actually did. Rail all you want against the injustices of closed and sealed adoptions, but if you believe Musser is a descendant of civil rights heroes for conspiring to obtain private social security records, you’ve misunderstood your history. And you’ve also picked a flawed messenger to get a true rights-based message across.

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Early on in my research, I was surprised to realize that, just a few miles away, was the University of Minnesota Social Welfare History Archives (SWHA), one of the largest and most complete social welfare archives in the United States. Better yet, it included thousands of records related to adoption and to the Crittenton organization’s, homes, operations, and activities. Other large collections of archival records at the SWHA include:

Child Welfare League of America
Florence Crittenton Association of America
National Florence Crittenton Mission
William Pierce Papers (National Council for Adoption)

So far I’ve been to the archives once, to review hundreds of Crittenton records, including reports from the Washington, D.C., home, newspaper clippings, correspondence, stock photos, plays, magazine articles, and studies. Despite two days of looking through folders, I didn’t get it all done.

Not everyone gets to live a few miles away from a vast archive that relates directly to his or her secretive history. So, here’s an offer to fellow adoptees (and mothers too, to be fair): I’ll retrieve, within reason, records of things you would like to see. As with research—and especially in this world of adoption—I make no guarantee that what you are looking for will be found, either in answers or in documents. But I can take a peek at specific records. Just let me know.

Here’s how it will work. In the next year I anticipate I will make three or four more trips to the archives. To do so, I must request records in advance from the archivists, who do a tremendous job answering questions and facilitating archival research. My current list of records is now being developed and I will request them from the archives in the next week. You can piggyback on my work by letting me know if there is a folder you would like me to review while I am there, either in the near future or during another anticipated stop later on in the coming months.

Now, a quick caveat. I cannot realistically do your research, meaning I cannot “take a peek” at a box full of hundreds of records to let you know what’s there. I need a bit more specificity than that, as in narrowing it down to the specific box and folder contained in a specific collection. Thus, I need to know the collection name (e.g., Child Welfare League of America records) plus the box and folder you are hoping to view (e.g., Box 1, folder 41). Without that information I’m basically stuck looking through haystacks. Also, if there is something very specific you would like me look for, please specify that to me. And the lawyer in me has to say this: I reserve the right to say no, not because I am mean but to guard against over-the-top requests that involve the retrieval of a ton of documents or do not relate to an adoptee’s personal search for understanding.

Also, it’s worth stating that there are no records in the collection that provide identifying information on adoptees or birth parents. This isn’t that kind of archive.

I’ll plan—and please use—this form here for requests. Please don’t make requests in the comments section below (though I’d love to hear what folks are hoping to find, other than parents or kids).

The SWHA is a world-renowned archive used by many notable adoption researchers and scholars. My hope is to provide other adoptees, at least for this limited time, access to resources without having to travel halfway across the country.

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