Friday, January 23, 2009

An Illinois Adoptee Goes to Court

AN ILLINOIS ADOPTEE GOES TO COURT

By Anita Walker Field

Several years ago in Georgia, a clear open records bill was being considered in the Senate after having passed the House. A Georgia Senator, opposed to the bill, rose to advise his fellow senators that adoptees didn't need another way to get their birth certificates. "All they have to do is go to court." And so the Georgia Senate voted down the good bill.

THE BATTLE FOR MY BIRTH CERTIFICATE

My campaign to get my original birth certificate began in Chicago on a sunny but brisk October morning in 1998. My destination: The Circuit Court of Cook County, Illinois. My battle plan: To file a petition to have certified copies of my entire adoption file and my original birth certificate turned over to me.

I paid the $220 filing fee and the $40 mandatory Adoption Registry fee. As the clerk stamped each page of my petition, I could feel jolts of power surging through me. I carried my now-official petition directly up to the judge's chambers, where his clerk assigned me a court date. I did it! I was actually on the docket!

"Are you crazy? It's all a waste of time," my friends told me. "You have to be knocking at death's door before a judge will even consider unsealing your original birth records."

"I don't care." I said. "I am going to court and I will make my voice heard."

The seeds of this campaign were sown back in July, 1993. That's when the Federal Government turned down my application for a passport because the only birth certificate I had, the old amended one given to me by my deceased adoptive parents, was woefully incomplete.

Catch 22! I needed a certain document to satisfy the federal government – the very same document that the Illinois state government has sealed in perpetuity. Illinois adoption law mandates that everything pertaining to an adoption be permanently impounded and sealed forever from the very person the process was created to serve – the adoptee.

I telephoned all of my elected representatives. I dragged from one government office to the next, trying to get someone – anyone – to help. Finally, as a result of the "behind the scene" efforts of a US Representative, the state came up with a plan. The state would create a new "Amended Birth Certificate" for me that said I was born in Chicago.

An Amended Birth Certificate is a mish-mosh of information which mixes together and blends facts about birth parents and adoptive parents. The finished product presumes that the adoptee is the biological child of her adoptive parents. This fiction was truly an insult to my intelligence, but I desperately needed the passport and so I readily accepted it. This wonderful new creation satisfied the feds; I received my passport just three days before my plane took off.

As the state had impounded my adoption records, so had I impounded my adoption feelings. I had thrown all of my questions about my origins and all of my yearnings to know the truth about myself way back into the darkest corner of the family closet. You know the one; it's where the skeletons live.

Home from London, I knew that I didn't want to pretend any longer. My shame had turned into red hot anger. I was "fighting mad" at a government that treated its adopted citizens differently from everyone else. I raced out of that closet and into the real world. For the next few years, I tried everything I could think of to find out my birth story.

My wonderful husband, Bob, is the one who steered me to the offices of the Chicago Daily Law Bulletin. We had heard that published adoption notices were required by law until the 1960s. Bob knew that if a notice existed, it would be in this newspaper. And he was right.

It took us a few hours pouring through the old microfilm, but we finally found it – my Adoption Notice, published approximately 3 weeks prior to the finalization of my adoption. Now I had a name – Baby Girl Walker. And my birth parents had names: "Mrs. Margaret M. Walker" and "Mr. first name unknown last name Walker." So much for birth parent confidentiality.

Soon I was gathering together the bits and pieces of information that I found both on my new amended birth certificate and the meager non-identifying information I had requested from the state. I signed up with every adoption registry I could find, starting with the IL State Adoption Registry and the International Search and Reunion Registry (ISRR).

And of course, I looked for Margaret M. Walkers everywhere. But I was looking for a needle in a haystack. I was reaching for a shadow

In 1995, I signed up with the Illinois Confidential program. I had to pay $500 up front to Midwest Adoption Agency, my court-appointed intermediary, and a $220 filing fee to Cook County. After two years, they dismissed my case as unsuccessful. The CI had been unable to locate any person, living or dead, to match up with any of the information in my adoption file.

I was devastated. I was desperate. But I was not defeated.

Next I turned my case over to a professional adoption searcher. I selected one that was extremely well known throughout the adoption community. I contracted to pay her $2900 upon location of a birth relative. Six months later, the professional searcher dissolved our contract. Her search had been unsuccessful too.

The Illinois' Adoption Act allows the Court to order the unsealing of adoption records to the adoptee if good cause is shown. And so I made my decision. I would do battle directly with the state.

From that beautiful autumn morning in 1998 when I first marched into the courthouse, until a few weeks before Christmas, I labored on almost nothing else but my legal brief. I'm not a lawyer and I didn't hire one. This was my personal struggle; one in which the only battle cry would be mine. My husband and daughter were at my side every step of the way, always there to guide and support me. But I went into combat alone.

When I took my filed petition upstairs to the judge's office, I was able to meet briefly with him and his law clerk. He asked why I wasn't just asking for my original birth certificate. I told him that I was only going through this procedure once and so I wanted it ALL.

Because I was doing this pro se, the judge directed me in the steps I needed to take to bring my petition to life, while always refraining from giving me any legal advice, which he is not allowed to do. He informed me that I would have to serve notice on both the Illinois Department of Public Health and the Cook County State's Attorney's office. The former keeps the original birth certificates; the latter over sees the Division of Vital records which maintains all adoption files.

After having served notice to both offices, attorneys were assigned by both of them to "represent" the state and the county's interests in my case.

At my first court appearance, both the judge and I received a "Memorandum in Opposition to Petition for Opening an Adoption File" written by the assistant state's attorney for Cook County who had been assigned by the Civil Division of the state's attorney's office to take my case. The Memorandum was actually a list of twenty reasons why the court should deny my request. Some were truly outrageous. For example, reason number 12 said that "The petitioner has not produced consent of either biological parent." However, the primary reason given was that I had not asserted good cause which would entitle me to access my records.

Both the judge and the assistant state's attorney explained to me that I had a right to file an amended petition at any time and enter any additional information I chose to submit. They assured me that I would not have to pay another filing fee nor start the entire process over from the beginning.

"Your Honor," I said. "I respectfully request a continuance in order to prepare an amended petition."

"Granted," smiled the judge with a bang of his gavel. "See my clerk and set up a new court date."

And so I went home to prepare an amended petition. I began by analyzing every single "reason" on that Memorandum of Opposition, which had been based upon a 1981 Illinois Appellate landmark decision, Roger B .[in re RogerB. 84 Ill.2nd 323, 418 N.E. 2d 751 (1981)

I first dismissed the ridiculous reasons, and then marched downtown to the State law library to collect ammunition to refute the others.

I discovered that in Roger B, the adoptee testified that his search was not based on any psychiatric or psychological medical need. Rather, it arose from the plaintiff's desire to discover his natural identity.

Therefore, I decided to use this distinction as a basis for my petition. I did have a psychological medical need. One of the proofs I presented was that in my original petition to the Court for a Confidential Intermediary, (in which I had to show cause,) the Court determined that such a condition existed, and that disclosure was authorized to facilitate treatment. [Note: The CI law has been changed since then. The adoptee no longer has to show cause.]

My arsenal now included favorable case law citations, statements concerning my unsuccessful search attempts in the past, and affidavits from the doctors and psychologists who had been helping me deal with my adoption issues throughout this entire emotional time in my life.

On December 2, 1998, I again stood before the judge.

"Your Honor," I began. "I'm here today to ask the Court to order the release of copies of my complete adoption file and my original birth certificate. I have built my case upon a 1977 Illinois court ruling which said that good cause for unsealing adoption records exists when there is a real and immediate need by the adoptee and no threat of substantial harm to the parents." [In re Doe, No 76 Co 2436 (Cook County) Ill, Cir. Ct., and Nov., 22, 1977]

"Go right ahead. I have read your amended petition," the judge reassured me. "Take all the time you need."

I started out by asking the judge to please consider the unique issues of my case within the framework of a very recent landmark 1997 appellate court decision, Doe v Sundquist.

"Do you have a copy of that case?" the judge asked me.

"Yes Your Honor," I replied as I hurriedly dug into my briefcase.

"Never mind. We will take a 15 minute recess while I read the case on my computer," the judge told us. And with that, he hurried out of the courtroom.

When the judge returned, he had read the case and agreed to consider my case within the broad framework of Doe v. Sundquist. He cautioned me that while Doe v Sundquist does not tell a judge that unsealing adoption records is the right thing to do, the appellate court decision did find "that the interest of an adoptee to know who his birthparents were is an interest entitled to a good deal of respect and sympathy."

And then it was my turn. I presented the case law I was basing my particular case upon and then I presented proofs to support every single aspect of the 1977 case as it would refer to me.

After I finished, the judge inquired, "Does the state's attorney wish to enter any objections?"

I held my breath. "No, Your Honor," replied the assistant state's attorney, the same person who had written the 20 point Memorandum of Opposition. "We ask the court to decide the matter on the merits of Ms. Field's position. The attorney general's office joins me in this position."

Whew! I had gotten past them this time.

"Very well. The Court continues this case to December 6, 1998, when it will render its decision. Court is adjourned."

My husband and daughter and I went home to wait. Only one more week to go. It was four and a half years since my fight with the passport office.

On that appointed morning, at the stroke of 10:00a.m., the judge whisked into the hot courtroom, carrying court papers in one hand and holding onto the folds of his robes with the other. The court reporter was already in place. The attorneys were sitting at a side table. The judge's law clerks and the secretary from his office had quietly entered the courtroom and were leaning against the side door, waiting. And huddled together on the wooden bench in the first row of the silent courtroom, holding hands, were my husband, my daughter, and me.

The bailiff called the court to order and the judge began to read into the record his two and half page written decision, spelling out the major issues as he viewed them.

"It is readily apparent that 'good cause' is not a static, limited concept, but a broad one, that must be determined on a case by case basis, depending in large measure upon the unique facts presented to the Court. The circumstances presented by the petition in question in this matter are clearly significantly different from those presented in Roger B.

"Therefore, following its evaluation of all of the facts and circumstances presented by the Amended Petition, and balancing the interests of the State and members of the adoption triad, the Court has determined that good cause has been established for the release of the documents and records in question, and their release is so ordered."

I WON!

This was the proudest day of my life!

I hope that some day all adopted adults in the United States will regain their civil right to unconditionally access their birth records in the same way as all other citizens. I pray that adult adoptees will no longer have to take to the battlefield in order to get what is rightly theirs.

PLEASE NOTE:

The two and a half page written court decision, as well as the court order itself, are stamped in large red letters – IMPOUNDED. The judge cautioned me that I must remember the meaning of IMPOUNDED in relation to the records in my case. Out of respect to the late Circuit Court Judge Stephen Yates, I intend to keep my promise to him regarding the IMPOUNDED order. So I have attempted to summarize and explain the judge's decisions but I have not published his actual decision.

This goes against all I work for – taking the secrecy out of adoption. However, the late Judge Yates was an honorable man. He was enormously helpful and incredibly kind to me throughout the entire process, and I intend to keep my promise to him.



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2 comments:

Marley Greiner said...

Thanks, Anita. I had never heard your court story in this detail before. This is inspiring, and I hope encourages others to follow your example. I'd love to see courts deluged with petitions. Wear them down, run the deformers out of adoption "reform" and the legislature (hint: Sara Feigenholtz), an open records to all.

Sandy Young said...

Bravo, Anita. Job well done! One of these days the adoptee and their mothers will be free to associate like real citizens, and not like clandestine lovers in an illicit love affair. It is absurd and defies reason.