Sherry H. v. Probate Court

• Decision Date: 20 March 1979
• Citation: 411 A.2d 931,177 Conn. 93
• Court: Connecticut Supreme Court
• Parties: . Supreme Court of Connecticut

Page 931

411 A.2d 931

177 Conn. 93

SHERRY H. v. PROBATE COURT.

Supreme Court of Connecticut.

Argued Nov. 8, 1978.

Decided March 20, 1979.

David Bixby, law student intern, under the supervision of Stephen Wizner, New Haven, with whom, on the brief, were Edward Conan, law student intern, Mary F. Keller, Dennis E. Curtis, and Judith P. Resnik, New Haven, for appellant (plaintiff).

Michael J. Daly III, Waterbury, with whom was John D. Mahaney, Waterbury, for appellee (defendant).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

This is an appeal by the plaintiff, Sherry H., an adopted person, from a judgment of the Superior Court dismissing her appeal from a judgment of the Probate Court denying her petition to view her original birth certificate pursuant to General Statutes § 7-53, as amended by Public Acts 1975, No. 75-170, hereinafter referred to as Public Acts 75-170. ¹ In dismissing the plaintiff's appeal, the Superior Court found that the revelation of the requested information would be detrimental to the welfare of the genetic mother and, exercising its discretion, further ruled that the petition should be denied because no supervision or restriction was imposed on the plaintiff's activities in the event that she obtained the information she sought.

The finding, with such corrections as are warranted, discloses the following: The plaintiff, Sherry H., was born in 1951 in Waterbury, Connecticut, and, at six months of age, was adopted through Jewish Family Services, hereinafter Family Services, in Hartford. At the age of five, she was told by her adoptive mother that she had been adopted. When she was sixteen, the plaintiff contacted Family Services concerning her adoption and family background and learned, inter alia, of her place of birth, that her genetic mother was a Russian Jew and was divorced, that she had been born out of wedlock, and that her genetic father had left the area upon learning of the pregnancy of her genetic mother. Thereafter, during 1973-1974, the plaintiff contacted James H. Kinsella, Judge of Probate at Hartford, and inquired whether she could look at her birth record. She subsequently wrote Judge Kinsella asking him not to pursue the matter, but afterwards called Judge Kinsella and learned that he had informally contacted someone at Family Services, whom he was unable to identify, who informed him that her mother did not wish to have her identity disclosed at that time. The plaintiff had no further direct contact with Judge Kinsella.

The plaintiff then contacted Family Services and spoke with a person who had talked directly with her genetic mother. In that conversation, she learned that the agency had contacted the plaintiff's mother, who inquired as to the plaintiff's well-being; that her genetic mother had said that no one in her mother's family ever knew that she was pregnant with the plaintiff; and that the plaintiff was born out of wedlock and her genetic mother did not want her identity disclosed because no one knew. The genetic mother did not, however, indicate whether she would be willing to speak with the plaintiff on the telephone at some future time.

In February, 1976, with the support of her adoptive parents, the plaintiff filed a petition pursuant to Public Act 75-170 in the Probate Court at Waterbury, seeking to inspect her original birth certificate. The Probate Court (Frederic E. Mascolo, J.) in a judgment and decree dated May 4, 1976, decided that Public Act 75-170 required, inter alia, that the genetic parent give permission to the adopted child seeking inspection of her birth certificate, and denied the plaintiff's petition because she had failed to secure the consent of her genetic mother and did not provide the court with any evidence concerning the interests and desires of her genetic mother.

The plaintiff then appealed to the Superior Court. On appeal, the court, in a de novo proceeding, heard testimony from the plaintiff and from Judge Mascolo. In addition to the facts recounted above, the court found that Judge Mascolo, upon determining that the plaintiff's records were in Hartford, had written to Judge Kinsella and had contacted him by phone in connection with the plaintiff's petition. In their telephone conversation, Judge Kinsella told Judge Mascolo that he was well acquainted with the matter, and that his court had made an investigation and had found that the genetic mother did not want her identity disclosed. Judge Mascolo did not know when the investigation was made; he conducted, however, no independent investigation concerning either the wishes of the plaintiff's genetic mother or the effect that disclosure of her identity would have on the parties. Judge Mascolo testified that he had concluded that the genetic mother would never give her consent to disclosure of the plaintiff's birth certificate. That conclusion, he testified, together with his assumption that most genetic parents did not wish to have their identities disclosed, formed the basis for his decision to deny the plaintiff's petition. The plaintiff made no further inquiry of Family Services concerning any possible change in her genetic mother's position; neither did the Superior Court conduct an independent investigation into the present situation of either genetic parent.

From those facts found, the Superior Court concluded that the plaintiff's genetic mother was unalterably opposed to disclosure of her identity; that there was no likelihood that the mother would change her position in this regard; and that disclosure of the genetic mother's identity would have a detrimental effect on her welfare, in that it would cause her embarrassment and mental anxiety because of the unexpected exposure of the past. The court further concluded that apart from the detrimental effect on the genetic mother, the plaintiff's petition should further be denied because no supervision or restriction was imposed on the plaintiff's activities "once her curiosity had been indulged," and that any possible benefit to the plaintiff by disclosure would be greatly outweighed by the likelihood of harm to the genetic mother.

The plaintiff moved for a remand to the Probate Court or for further investigation by the Superior Court in order to obtain sufficient facts about her genetic parents to make a determination under Public Act 75-170. That motion was denied and the judgment of the Probate Court denying the plaintiff's petition was affirmed. From the dismissal of her appeal by the Superior Court, the plaintiff has appealed to this court.

The plaintiff makes numerous assignments of error relating to the court's findings and conclusions. For the disposition of this appeal, however, these claims present three issues for our consideration: (1) whether the proceedings below were controlled by the provisions of General Statutes § 7-53 as amended by Public Act 75-170 or by Public Acts 1977, No. 77-246, hereinafter referred to as Public Act 77-246; (2) whether, under the controlling statute, the court was required to conduct a timely and independent investigation into the effect that disclosure of the plaintiff's birth record would have on the welfare of her genetic mother; and (3) whether the court conducted such an investigation.

I

The plaintiff's petition in the Probate Court was brought, and the case was decided in the Probate Court and in the Superior Court, pursuant to the provisions of General Statutes § 7-53, as amended by Public Act 75-170. ² While this appeal was pending, however, General Statutes § 7-53, as amended by Public Act 75-170, was repealed and in place thereof was substituted Public Act 77-246. This act significantly impacts upon both the ability of the adopted adult to examine a birth record and the procedures under which such an examination might take place. Under Public Act 75-170, access to birth records was intended to be essentially a matter of Probate Court discretion, the court weighing the effect of disclosure of the birth record on the welfare of the adopted person, on the welfare of the adopting and genetic parents, and on the public interest. See 18 S.Proc., pt. 3, 1975 Sess., pp. 1247-48 (remarks of Sen. George C. Guidera); 18 H.R.Proc., pt. 5, 1975 Sess., pp. 2379-80 (remarks of Rep. Martin B. Burke). Public Act 77-246, while retaining such a balancing approach to the disclosure of birth records, provides that a Probate Court may authorize the examination by an adult adopted person of a birth record, unless "(1) such information would identify the genetic parents and written consent of each identified genetic parent . . . has not been given." Public Act 77-246, § 15(a)(1), and see also §§ 14-17; see 20 H.R.Proc., pt. 8, 1977 Sess., pp. 3419-20 (remarks of Rep. Ernest N. Abate).

The defendant argues that Public Act 77-246 controls this appeal and that, under this act, the plaintiff's petition was properly denied as it did not appear that the plaintiff's genetic mother would consent to an examination of the birth certificate. As will immediately appear, we disagree with both of the defendant's contentions.

General Statutes § 1-1(u) provides that "(t)he passage or repeal of an act shall not affect any action then pending." We have construed that provision to mean that "(s)tatutes should be construed retroactively only when the mandate of the legislature is imperative." Adamchek v. Board of Education, 174 Conn. 366, 369, 387 A.2d 556, 557 (1978), quoting Michaud v. Fitzryk, 148 Conn. 447, 449, 171 A.2d 397 (1961); see New Haven v. Public Utilities Commission, 165 Conn. 687, 726, 345 A.2d 563 (1974); Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). Moreover, statutes that effect substantial changes in the law do not apply in pending actions unless it clearly and unequivocally appears that such was the legislative intent; American Masons' Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223, 384 A.2d 378 (1978); E....