In re Margaret Susan P.

• Citation: 733 A.2d 38
• Decision Date: 14 May 1999
• Docket Number: No. 98-145.,98-145.
• Court: United States State Supreme Court of Vermont
• Parties: In re MARGARET SUSAN P.

733 A.2d 38

In re MARGARET SUSAN P.

No. 98-145.

Supreme Court of Vermont.

May 14, 1999.

Michael S. Gawne of Brown, Cahill, Gawne & Miller, P.C., St. Albans, for Plaintiff-Appellant.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for Defendant-Appellee.

Present AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

DOOLEY, J.

This case requires us to define the rights of access of an adult adoptee to adoption records under the recently-enacted Vermont Adoption Act, Title 15A of Vermont Statutes Annotated. The context of our decision is a request by an adult adoptee to examine and photocopy the file on her relinquishment and adoption held by the private adoption agency that placed her with an adoptive family. Both the Chittenden Probate Court and the Chittenden Superior Court denied this request, holding the adoptee was entitled only to a summary of the information in the file. We conclude that the probate or superior court can order the relief the adoptee requests if it finds that the balance of statutory factors supports disclosure. We also conclude that the summary provided to the adoptee in this case was insufficient to comply with the applicable statute. We reverse and remand for further proceedings consistent with this opinion.

Plaintiff Daphne Gawne was born on March 25, 1951 in Burlington while her birth mother was a resident at the Elizabeth Lund Home, now the defendant, Lund Family Center. Plaintiff's birth mother ultimately relinquished her to the Elizabeth Lund Home, which then placed her with Blaise and Katherine Kent. The Chittenden Probate Court formalized the Kents' adoption of plaintiff on May 31, 1952.

Plaintiff first began to seek information related to her adoption in the 1980's. Since the deaths of her adoptive mother in 1987 and her adoptive father in 1990, she has attempted to gain information regarding her adoption from both defendant and the probate court. In June 1995, plaintiff visited defendant and requested to inspect or obtain a copy of all files in its possession relating to her or her adoption. Defendant refused this request. Plaintiff filed a petition for disclosure of information with the Chittenden Probate Court in August of 1997 pursuant to the relevant provisions of the Vermont Adoption Act, 15A V.S.A. §§ 6-104(e), 6-112(a). Plaintiff's birth mother consented to disclosure of the information plaintiff requested. Her putative father consented to the disclosure as long as identifying information pertaining to him was deleted. The court denied the petition, although it did order defendant to provide a more detailed summary of the records in its possession. The superior court affirmed the probate court decision by granting summary judgment for defendant.

This is an unusual case. By June 1997, when the probate court released its file to her, plaintiff was aware of virtually all information about her birth family and her adoption. She knew the identity and location of her birth mother and that of the man her birth mother identified as her birth father. She had received extensive information from defendant about her adoption. Defendant drew the line, however, at giving plaintiff complete access to its file on her and her adoption.

It is also an unusual case because the information already disclosed to plaintiff shows serious irregularities in the placement of plaintiff with her adoptive parents and in the steps to the finalization of the adoption. Because of these irregularities, the Elizabeth Lund Home opposed the adoption when it finally came before the Chittenden Probate Court in 1952. Its main reasons were that: (1) the placement with the adoptive parents was based on friendship with Elizabeth Lund Home staff and not on an objective home study; (2) because of their age and other factors, the adoptive parents were not eligible to adopt babies placed by the home under the existing policies of the home; and (3) the adoptive parents moved to another state shortly after the placement, and that state refused to supervise the placement. After taking evidence, the probate court approved the adoption over the objection of th Elizabeth Lund Home and the Commissioner of the Vermont Department of Social Welfare.

We point out the unusual nature of the dispute to emphasize what is at issue in this appeal. Although plaintiff may want to learn more about herself and her birth parents, her main interest is in knowing how defendant and its employees acted in taking the relinquishment from her birth mother and discharging its obligations as custodian up until the time she was adopted. We are, therefore, not dealing primarily with the privacy interests of birth parents, adoptees or adoptive parents. Instead, we are considering the privacy interests of a private adoption agency.

On appeal, plaintiff makes a number of claims about the merits of the superior court decision and about the procedure the court employed in reaching its decision. We discuss the merits below. Before we reach the merits, we consider one other appeal issue — whether Judge Linda Levitt should have been disqualified from hearing the case — because it goes to the integrity of the adjudicatory process.

I. Motion to Disqualify

Plaintiff moved to disqualify Judge Linda Levitt on February 15, 1998, about a month after defendant filed a motion for summary judgment in Chittenden Superior Court. Her primary grounds were that Judge Levitt is an adoptive mother who "might hold positions typical of adoptive mothers and cannot easily set aside a potential predisposition against disclosure." Plaintiff also cited that when she appealed to Chittenden Superior Court, defendant failed to appear and plaintiff moved for a default judgment. Rather than acting on the motion, Judge Levitt directed the clerk to notify the attorney for defendant of the pendency of the appeal and to send the attorney a copy of the notice of appeal and statement of questions. Once defendant appeared in the action through counsel, Judge Levitt denied the motion for a default judgment.

The motion to disqualify was referred to the Administrative Judge for Trial Courts who designated Judge Dean Pineles to rule on it. See V.R.C.P. 40(e)(3) (motions to disqualify are decided by administrative judge or his designee). Judge Pineles denied the motion, ruling that plaintiff's concerns were "speculative in nature" and that plaintiff failed to make a clear and affirmative showing of bias or prejudice. On appeal, plaintiff makes the same arguments she made to the administrative judge.

Plaintiff's motion to disqualify is based on Canon 3E of the Code of Judicial Conduct, which requires a judge to disqualify herself "in a proceeding in which the judge's impartiality might reasonably be questioned." See A.O. 10, Canon 3E(1). Plaintiff argues that because studies show that adoptive parents are often hostile to an adoptee acquiring information about birth parents or the adoption, Judge Levitt should have disqualified herself from this dispute about an adoptee's access to adoption information.

We addressed the standard of review for disqualification decisions in State v. Putnam, 164 Vt. 558, 560-61, 675 A.2d 422, 423-24 (1996). We noted that a judge subject to a "disqualification motion is accorded a presumption of honesty and integrity." Id. at 561, 675 A.2d at 424. We also held that the administrative judge has discretion in ruling on disqualification motions and will be reversed only if the judge has abused his discretion such that no reasonable basis exists for the decision. See id.

Two themes go through plaintiff's motion: (1) that because some adoptive parents are hostile to access to information, the impartiality of an adoptive parent judge might reasonably be questioned; and (2) because Judge Levitt made some erroneous rulings that prejudiced plaintiff, her impartiality can be questioned. Plaintiff's first theme is that we should impose a per se disqualification rule for adoptive parents with respect to adoptee actions for adoption information. We noted in Putnam that "per se" rules are generally inappropriate in judicial disqualification cases, unless explicitly recognized by provisions of the Code of Judicial Conduct. See id. The Code contains no explicit recognition of the per se rule plaintiff seeks here.

Such a per se rule would be particularly inappropriate in a case like this. Judges may be public officials, but they are also private citizens of all genders, races and religions, and with diverse family circumstances. We do not believe that personal and family circumstances are appropriate considerations on which to presume bias or partiality. See, e.g., United States v. Alabama, 828 F.2d 1532, 1542 (11th Cir.1987) (decided under identical disqualification language in 28 U.S.C. § 455(a)). Plaintiff offered no evidence that Judge Levitt's status as an adoptive parent made her partial. We see no abuse of discretion in the denial of the motion to disqualify because of Judge Levitt's status as an adoptive parent. Plaintiff's second theme is equally unpersuasive. Plaintiff claims Judge Levitt should have been disqualified because of her judicial actions in this case. We held in State v. Streich, 163 Vt. 331, 354, 658 A.2d 38, 53 (1995), that "rulings adverse to [a party], even if erroneous, do not by themselves demonstrate that the judge was biased. It is incumbent on [the party seeking disqualification] to make some showing of improper motivation by the rulings. . . ." Plaintiff has made no showing of improper motivation behind the disputed rulings here. Plaintiff's remedy, if any, is to appeal, not to disqualify the judge. We find no abuse of discretion in the administrative judge's decision to deny the motion to disqualify Judge Levitt.

II. Merits

We now turn to the merits of the case. We are reviewing an award of summary judgment. In doing so, we use the same standard as the superior court and will affirm the summary judgment if "there are...