Linda F. M., Matter of

• Decision Date: 17 January 1978
• Citation: 401 N.Y.S.2d 960,92 Misc.2d 828
• Parties: In the Matter of LINDA F. M. Surrogate's Court, Bronx County
• Court: New York Surrogate Court

Page 960

401 N.Y.S.2d 960

92 Misc.2d 828

In the Matter of LINDA F. M.

Surrogate's Court, Bronx County.

Jan. 17, 1978.

Herzfeld & Rubin, P. C., New York City (Gertrud Mainzer, New York City, of counsel), for petitioner.

Louis J. Lefkowitz, Atty. Gen., Charles L. Brody, Asst. Atty. Gen., for respondent.

BERTRAM R. GELFAND, Surrogate.

This is a proceeding pursuant to Section 114 of the Domestic Relations Law, commenced by an adult adoptee for leave to gain access to the sealed records respecting her adoption on good cause shown. The petitioner's adoptive father is deceased. The adoptive mother joins in this application. The court had directed upon the filing of the petition herein that notice of the application be given to the Attorney General in view of the issues raised as to the constitutionality of Section 114 D.R.L. Notice was also given to the Commissioner of Health who has custody of the original birth record that had been sealed by virtue of the order of adoption dated March 4, 1941.

At the initial hearings on this matter an issue had been raised as to the rights of the natural parents of the petitioner to participate in this proceeding. The Attorney General has taken the position that the natural parents are necessary parties in this proceeding; that a Guardian ad Litem should be appointed to represent them and, if possible, to find them and apprise them of their rights. (See: Matter of Anonymous, 89 Misc.2d 132, 390 N.Y.S.2d 779.)

The pertinent portion of Section 114 of the Domestic Relations Law states that:

"No person shall be allowed access to such sealed records and order and any index thereof except upon an order of a judge or surrogate of the court in which the order was made or of a justice of the supreme court. No order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct." (Emphasis added)

The provisions in the law for sealing adoption records was enacted in 1924 when the court was given the discretion to seal all of the records except the order. The order was filed and recorded in the County Clerk's Office (Chap. 323, Laws of 1924). In 1938 the sealing of all records was made mandatory and the procedure for access to the records was enacted. Initially, the only notice on an application to unseal the file that was required was that to be given to the adoptive parents. By Chapter 1038 of the Laws of 1968 the procedures with reference to the processing of applications for agency adoptions (as distinguished from the private placement adoptions) had been drastically changed to provide for the withholding from the adoptive parents of certain personal information respecting the adoptive child, e. g., surname of the child. In this same Chapter 1038, Section 114 was amended to give the court discretion to serve notice of the application for access to the adoption records "to such additional persons as the court may direct." From the history of Section 114 D.R.L., it is clear that the only mandated necessary parties to an application to open the records are the adoptive parents. The surviving adoptive parent here has joined in this application. The involvement of other persons in the proceeding is within the sound discretion of the court. They may be brought in by notice given to them in such form and such manner as the court may direct (SCPA 313).

It is contended by petitioner that as a matter of law the court lacks jurisdiction to direct notice of this proceeding to the natural parents. Petitioner argues that since the statute in existence at the time of the adoption in 1941 contained no provision for notice to "such additional persons as the...