Matter of Linda F.M., 95 Misc.2d 581, 409 N.Y.S.2d 638 (1978).

Matter of LINDA F.M.

Surrogate's Court, Bronx County.

Oct. 26, 1978.

[409 N.Y.S.2d 638, 639]
    Herzfeld & Rubin, P.C., New York City (Gertrud Mainzer, New York City, of counsel), for petitioner.

    Louis J. Lefkowitz, Atty. Gen. of N.Y. (Charles Brody, New York City, of counsel), for State of New York, respondent.

    W. Bernard Richland, Corp. Counsel, New York City (Bery L. Kuder, New York City, of counsel), for New York City Dept. of Health, respondent.

    BERTRAM R. GELFAND, Surrogate.

    Upon this application petitioner seeks access to both the records of her adoption and to the sealed Board of Health records relative to her birth.  Petitioner pursues a three-pronged attack incorporating a multitude of arguments in support of the relief being sought.  Initially she contends that the provisions of Domestic Relations Law, Sec. 114, pertaining to the sealing, unsealing and confidentiality of adoption records are not applicable to her.  As a first alternative she contends that if the statute does apply to her, the proof adduced at the hearing with reference to good cause existing sustains granting the application pursuant to statute.  The final basis presented for relief is a contention that in any event, the statute sealing adoption and original birth records of adoptees is offensive to the provisions of the United States and New York State Constitutions and should be declared null and void.

    The adoption of petitioner was concluded by the entry of an order on March 14, 1941.  Petitioner's adoptive mother joins in the application.  her adoptive father is now deceased.  Upon the facts then apparent, the request made by petitioner, upon initiation of this proceeding, that her natural parents should not be made parties and that a guardian ad litem should not be appointed for them, was granted [See: Matter of Linda F.M., 92 Misc.2d 828, 401 N.Y.S.2d 960].

    The constitutionality of the statute is an issue which should be addressed only if the relief sought cannot otherwise be obtained [Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; United [409 N.Y.S.2d 638, 640] States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524, People v. Heller, 33 N.Y.2d 314, 352 N.Y.S.2d 601, 307 N.E.2d 805; People v. Epton, 19 N.Y.2d 496, 281 N.Y.S.2d 9, 227 N.E.2d 829].  Accordingly, the other basis for relief presented by petitioner will be first considered.

    It is appropriate to initially adress petitioner's contention that the statute governing the sealing of adoption records is inapplicable to her.  In support of this position she alleges that this statute applies only to agency adoptions and not to private placement proceedings, such as the one in which she was adopted.  The pertinent portion of Sec. 114 of the Domestic Relations Law provides that with reference to sealed adoption records "No order for disclosure or access and inspection shall be granted except on good cause shown * * *".  Petitioner's position that this explicit language is not applicable to her case is based upon the fact that the quoted language is in a section of the Domestic Relations Law which is part of Title II, Article 7.  Title II is entitled "Adoptions From an Authorized Agency."

    The pertinent provisions of the title of the Domestic Relations Law governing private placement adoptions indicate in explicit language the total lack of validity of this argument.  Article 7, Title III, Domestic Relations Law bears the specific heading "Private-Placement Adoptions."  Sec. 116(4), Domestic Relations Law is part of Title III.  That subdivision states that if the court having jurisdiction over the adoption is satisfied that it should be granted, "* * * the provisions of section one hundred fourteen of title two of this article shall apply."  Accordingly, the provisions for the sealing of adoption records set forth in Sec. 114 are by reference equally applicable to both private and agency adoptions.

    It is further argued by petitioner that the statute governing the sealing of adoption records shall be construed as not being applicable to a record where the adoptee has become an adult.  The possibility of such a construction rests totally upon the language of the statute.

    In addressing this issue, sensitivity must be shown to the well established principle that separation of powers dictates that courts be limited in construing a statute to determining the intent of the Legislature in those situations where the language of the statute is either subject to more than one interpretation or is otherwise unclear.  [Bright Homes v. Wright, 8 N.Y.2d 157, 161-162, 203 N.Y.S.2d 67, 69-70, 168 N.E.2d 515, 517-518; Sexauer & Lemke v. Burke & Sons Co., 228 N.Y. 341, 127 N.E. 329; McKinney's Statutes § 76].

    The discharge of this function does not confer upon the judicial branch of government the power, under the guise of construction, to legislate by amending, modifying, extending, or otherwise creating a statutory provision alien to the clear language of that which has been enacted by the legislature and signed by the governor.  [Matter of Anonymous (St. Christopher's Home), 40 N.Y.2d 96, 102, 386 N.Y.S.2d 59, 63, 351 N.E.2d 707, 711; Matter of Malpici-Orsini, 36 N.Y.2d 568, 571, 370 N.Y.S.2d 511, 514, 331 N.E.2d 486, 488, app. dsmd. 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 631; Bright Homes v. Wright, supra; Allen v. Minskoff, 38 N.Y.2d 506, 381 N.Y.S.2d 454, 344 N.E.2d 386; Lawrence Constr. Corp. v. State of New York, 293 N.Y. 634, 639, 59 N.E.2d 630, 632; Sexauer & Lemke v. Burke & Sons Co., supra].

    On this subject, Judge Cardozo, speaking for a unanimous Court of Appeals cautioned that:

"Freedom to construe is not freedom to amend"
(Sexauer & Lemke v. Burke & Sons. Co., supra, 228 N.Y. at 345, 127 N.E. at 331).

    Chief Judge Lehman writing for a majority of six judges wrote at page 639, of 293 N.Y., at page 632 of 59 N.E.2d in Lawrence Constr. Corp. v. State of New York, supra:

"A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complica- [409 N.Y.S.2d 638, 641] tions which might arise in the course of its administration."
    More recently Judge Foster writing for a unanimous Court of Appeals strongly restated the applicable admonition in the much cited case of Bright Homes v. wright, supra, 8 N.Y.2d at p. 162, 203 N.Y.S.2d at p. 70, 168 N.E.2d at p. 517 in the following language:
"Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."
    Petitioner cites no statutory language limiting the period in which an adoption record remains sealed, nor can the court discern any express or implied intent in the statutes which would support the construction sought by petitioner.  A reading of all of the sections of the Domestic Relations Law applicable to both agency and private placement adoptions does not disclose any possible basis for concluding that between the lines of the explicit language constituting the statute governing the sealing of adoption records, there exists an unexpressed intent on the part of the Legislature that the provisions with reference to such sealing of adoption records are not applicable to adoptees who have reached their majority.

    In interpreting adoption legislation, it must be further remembered that adoptions were unknown to the common law.  Adoption is a procedure that exists only by dint of statutory enactment (Matter of Malpica-Orsini, supra, 36 N.Y.2d at 570, 370 N.Y.S.2d at 513, 331 N.E.2d at 487; Betz v. Horr, 276 N.Y. 83, 86-87, 11 N.E.2d 548, 549-550; Carpenter v. Buffalo Gen. Elec. co., 213 N.Y. 101, 104, 106 N.E. 1026, 1027; Matter of MacRae, 189 N.Y. 142, 143, 81 N.E. 956; Matter of Thorne, 155 N.Y. 140, 143, 49 N.E. 661, 662; Caruso v. Caruso, 175 Misc. 290, 23 N.Y.S.2d 239).  Since adoption statutes are in derogation of the common law, they must be strictly construed ("Doe" v. "Roe", 37 A.D.2d 433, 436, 326 N.Y.S.2d 421, 425; Caruso v. Caruso, supra; Matter of Santacose, 271 App.Div. 11, 16, 61 N.Y.S.2d 1, 5; Matter of "Wood" v. "Howe", 15 Misc.2d 1048, 1050, 182 N.Y.S.2d 992).

    It is accordingly concluded that the statutes whose construction have been placed in issue by petitioner provide that all records of adoptions are sealed forever unless opened by an order of a court of competent jurisdiction upon the establishment of good cause.  The applicable statutes make no distinction between a record of a private placement or an agency adoption, nor do they differentiate between a record where the adoptee is now an adult, or one in which the adoptee is still an infant.

    It having been concluded that the statute requires a showing of good cause before the records at issue can be unsealed, it is necessary to review the proof offered by petitioner to establish good cause.  Petitioner, to succeed on this issue, must show a present need to view the sealed records [Matter of Chattman, 57 A.D.2d 618, 393 N.Y.S.2d 786; Matter of Anonymous, 89 Misc.2d 132, 390 N.Y.S.2d 779].  This need must rise above mere desire or curiosity.  A present need sufficient to sustain good cause has been found when the evidence has shown that access was necessary for a current medical or genetic reason [Matter of Chattman, supra] or for a present psychological problem [Matter of "Anonymous", 92 Misc.2d 224, 399 N.Y.S.2d 857; Matter of Maxtone-Graham, 90 Misc.2d 107, 393 N.Y.S.2d 835].  In each of these cases a causal connection was established between the medical support for the application and a present need of the petitioner.

    The record indicates that petitioner is now approximately 37 years of age.  The order of adoption was entered when she was approximately 8 months old.  Petitioner testified that she was first married in 1960.  She presently resides with her 17 year old son who was the sole issue of that marriage and is petitioner's only [409 N.Y.S.2d 638, 642] child.  The marriage was terminated by divorce in December, 1961.  Petitioner entered into a second marriage in November, 1971, which was annulled in September, 1974.

    It was further testified by petitioner that she graduated from college in 1963.  She devoted the period from 1963 to 1970 exclusively to the care of her son.  Thereafter she began working in the field of typesetting.  She is presently employed by a law firm doing related work.

    It is argued by petitioner that the knowledge of her adoptive status without the full knowledge of the identity of her natural parents has caused her psychological problems which impaired her artistic skills.  In support of this argument, petitioner stated that she had "cut" a musical record in 1964, the success of which was not clarified.  She had not many any recording since that time.  She also indicates that she wrote poetry in college, but was not inspired in this direction again until 1973.

    It is also contended by petitioner that good cause exist because of petitioner's concern that she might enter into an incestuous marriage unless she is able to learn the identity of her natural parents.  A further ground for the existence of good cause was that she wished to establish the faith of her son and herself by learning the faith of her natural mother.  Petitioner also testified that she had consulted with a psychiatrist.  However, these consultations were not related to her adoptive status.  They consisted of discussions concerning her relationship with the father of her son.

    At the hearing testimony was adduced from a psychologist, and from a psychiatrist whose specialty is human genetics.  Neither of these witnesses ever treated petitioner.  The psychologist was primarily involved with a research project involving adoptees as one phase of an inquiry called "People at Risk."  The other groups involved in addition to adoptees were prisoners and diabetics.  This witness had interviewed petitioner during three one-hour sessions over a one year period and had administered tests in connection with a control group of 300 adoptees he had under study.  Petitioner's test results placed her in the middle of the test scale.  These results indicated nothing unusual about petitioner as an adoptee as against a non-adoptee.

    The expert testimony of the psychiatrist was limited to indicating that genetic history is useful in the diagnosis of certain ailments.  However, neither petitioner nor her son is undergoing, or has in the past undergone, any medical treatment or examination for which genetic data was needed.  The testimony on genetics was in no way related to petitioner or her son, nor was it causally connected to the issue on trial.

    The evidence as to petitioner's marital history or lack of artistic achievement for a period of years was not even remotely connected to any need to view the records that are presently sealed.  The attempt to relate the lack of success of her second marriage to a younger man of a different faith to her 1971 discovery of her adoptive status is not supported by the credible proof.  The hiatus in petitioner's artisitc efforts began long after she learned she was an adoptee.  The proof on this subject did not in any way relate her non-productivity in artistic areas to her adoptive status or to her learning of this status.  The record is also devoid of any evidence that petitioner, or her son, harbored any religious belief which would sustain a need to unseal the records at issue.

    The evidence adduced fails to even suggest, let alone sustain, any conclusions other than that the motivating cause for the application is petitioner's curiosity.  To conclude that mere curiosity as to one's natural forebears constitutes good cause within the framework of Domestic Relations Law 114 would render the clear import of the statute meaningless.  Every application to unseal adoption records would have to be perfunctorily granted.  This would be a result whereby judicial fiat the clear provisions of the statute would be routinely ignored.  Such a course would be no less than [409 N.Y.S.2d 638, 643] blatant judicial intrusion into the legislative process.  It is accordingly concluded that petitioner has failed to establish a statutory right to relief.

    There remains petitioner's challenge to the constitutionality of the statute that bars her access to the records she seeks to examine.  Petitioner argues that Domestic Relations Law, Section 114 unconstitutionally deprives her of a fundamental right to her "personality", "privacy", and "to receive information about her origin", all of which rights are allegedly "protected by the due process and equal protection clauses, as well as by the Thirteenth Amendment."  It appears that intrinsically this argument rests upon the statute precluding her from access to information as to her birth which a non-adoptee could obtain, and a conclusion that this legislatively created limitation has no legitimate basis.

    A court in assessing a constitutional attack upon a statute must be senstive to certain basic principles.  It must be remebered that a strong presumption of constitutionality attaches to all legislation [Wasmuth v. Allen, 14 N.Y.2d 391, 397, 252 N.Y.S.2d 65, 69, 200 N.E.2d 756, 759; Defiance Milk Prods. Co. v. Du Mond, 309 N.Y. 537, 132 N.E.2d 829; Matter of Cullum v. O'Mara, 43 A.D.2d 140, 145, 350 N.Y.S.2d 162, 167].  From this presumption flows a further presumption that the Legislature, in enacting a statute, has investigated and found the facts necessary to support a need for the legislation [I.L.F.Y. Co. v. Temporary State Housing Rent Comm., 10 N.Y.2d 263, 269, 219 N.Y.S.2d 249, 252, 176 N.E.2d 822, 825; Lincoln Bldg. Assoc. v. barr, 1 N.Y.2d 413, 153 N.Y.S.2d 633; Matter of Cullum v. O'Mara, supra; East N.Y. Savings Bank v. Hahn, 293 N.Y. 622, 59 N.E.2d 625, affd. 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34].  Relatively recent holdings of our highest court hae indicated that a party seeking to declare a statute unconstitutional must demonstrate its invalidity beyond a reasonable doubt [People v. Pagnotta, 25 N.Y.2d 333, 337, 305 N.Y.S.2d 484, 487, 253 N.E.2d 202, 205; Matter of Van Berkel v. Power, 16 N.Y.2d 37, 40, 261 N.Y.S.2d 876, 878, 209 N.E.2d 539, 541].

    It is not disputed that the development of a procedure which will promote, encourage and facilitate the adoption of children is a legitimate area of state concern.  As in other areas of responsibility exercised by a sovereign state, it is recognized that the proper discharge of these responsibilities involves, of necessity, the enactment of statutes which submerge individual rights to the common good resulting in some restriction on the unfettered liberty of individuals or institutions to proceed as they may wish in every situation.  The state is given this authority under the police powers so that it may discharge its responsibilities as a sovereign.  These powers give broad discretion to the Legislature in selecting the most appropriate course for promoting and protecting the health, welfare and safety of the people of the state.  The extensive nature of the state's police power was described by the United States Supreme Court as follows in Atlantic Coast Line v. Goldsboro, 232 U.S. 548, 558, 34 S.Ct. 364, 368, 58 L.Ed. 721:

"For it is settled that neither the 'contract' clause nor the 'due process' clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise."
Its scope was more recently summarized by the Court of appeals as follows:
"At the outset it must be emphasized that '(t)he police power of the State is the least limitable of all the powers of government' [Matter of Engelsher v. Jacobs, 5 N.Y.2d 370, 373, 184 N.Y.S.2d 640, 157 N.E.2d 626, cert. den. 360 U.S. 902, 79 S.Ct. 1286, 3 L.Ed. 1255] and we have sustained its application to the conservation of fish and wildlife [Barret v. State of New York, 220 N.Y. 423, 116 N.E. 99, supra] and other areas of beauty and [409 N.Y.S.2d 638, 644] esthetics

[409 N.Y.S.2d 638, 647] present New York law.  Each state is sovereign.  It is neither appropriate nor proper for the court to determine which legislative view is wiser.

    On the constitutional questions before this court, it is concluded that petitioner has not established the constitutional invalidity of the statutory provisions she placed at issue.  The question of whether New York should adopt the position of some of her sister states in unsealing by statute the records of adult adoptees is a subject for legislative, not judicial determination.  It is a change that cannot be successfully accomplished by constitutional attacks on the present statute, or a search for strained and impossible constructions of existing law.

    The application is in all respects denied and the petition dismissed.

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