Linda F. M., Matter of

• Citation: 409 N.Y.S.2d 638,95 Misc.2d 581
• Parties: Matter of LINDA, F. M. Surrogate's Court, Bronx County
• Decision Date: 26 October 1978
• Court: New York Surrogate Court

Page 638

409 N.Y.S.2d 638

95 Misc.2d 581

Matter of LINDA, F. M.

Surrogate's Court, Bronx County.

Oct. 26, 1978.

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 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 address 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 indicates 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 placement 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 Malpica-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 complications 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; Betz v. Horr, 276 N.Y.S. 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 appropriate jurisdiction upon the establishment by a petitioner 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 768; 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 first learned of her adoptive status in 1971 when her adoptive father was seriously ill.

Petitioner testified that ...