Illinois Confidential Intermediary Law Rules Supreme

          


"... if you choose to use the state-run Confidential Intermediary Program, you should know that there will be yet another file being compiled about you and it will  be withheld from you - forever."


Confidential Intermediary - CI
Original birth certificate - OBC


Illinois' current CI law has a goal of helping adoptees to search and find birth parents while at the same time "protecting" birth parents by withholding all identifying information about them until they are found and they can fill out a preference form about whether or not they wish to have any contact with their adoptee. Only if a "found" birth mother consents to contact will there be any information exchanged. The overriding rule governing the entire CI system is that no identifying information will ever be issued to any adoptee UNLESS THE BIRTH MOTHER CONSENTS. Now where have I heard that before?


This situation oozes with irony. Adoptees with OBCs in hand will soon be coming to the CI program. However, once they sign up to  use the CI system, the adoptees will not be entitled to ANY IDENTIFYING INFORMATION gathered by the CIs before (when the CI's secure the adoption records from the state), during, and after the search.


Even with you own OBC in hand, if you select the CI system to help you search, you are kept out in the cold. The state still withholds from you ALL information gathered by the CIs in order to  "protect" a birth mother's anonymity. This is kind of funny, because all these adoptees will already know their birth mother's identity.


At the conclusion of all CI searches, no matter the outcome, all of the information that the CIs have gathered about you will go straight into a confidedntial  CI file and will never be released to you. I know because I tried to get this information.


Any searching adoptee will tell you that no clue is too small to be considered. Ninety-nine people can take a look at the same set of facts, and they will all reach the same conclusion. Then along comes one other person who looks at the very same raw data, but comes to a different conclusion. I thought that maybe  I could be that 100th person.


I wrote to Nancy Golden, one of the owners of Midwest Adoption Center and my personal CI. I requested copies of everything that is in my CI file.  After all, my case was considered unsuccessful and it was  dismissed after two years. Wouldn't  you think, though, there must be some notes lying around somewhere? That's what I thought.


I have to go back a few years in my story now. About a year after being dumped by the CIs.   I petitioned the Cook County Circuit Court. I asked  the court for copies of everything that existed in my adoption file, plus a copy of my original birth certificate. I won the case and the late Judge Stephen Yates  ordered copies of all of these adoption records turned over to me.

As the days went by, I began to wonder.  What happened to all of the information that the CIs had collected during my 2-year long search? There must have been a lot of stuff. Where was it now? I figured  that  in some file there must be working copies of obits, marriage, divorce, and death certificates, birth certificates, census records, church records, military papers, etc. --all information that is open to public inspection.  So why shouldn't it be opened to me?


Because... I was still thinking of myself as that 100th person who just might glean something different from all that material. And so I wrote my request.


I received a reply from Kathleen Hogan Morrison, Attorney for Midwest Adoption Center. It was her legal opinion that the Illinois CI law does not permit CIs to ever release any data that they collect during a search.


The section of the law that Attorney Morrison referred me to states that any CI who improperly discloses information identifying a birth parent shall be “liable to the birth parent for damages and may also be found in contempt of court.” She continued to site the law, which says: “(2) Any person who learns a birth parent’s identity, directly or indirectly, through the use of procedures provided in this Section and who improperly discloses information identifying the birth parent shall be liable to the birth parent for actual damages plus minimum punitive dames of $10,000.” [750 ILCS 50/18.3a.)


        But Attorney Morrison. I already know the
        identity of my birth parents.


        Shut up and keep reading.


“Ms. Field is incorrect in her assertion that ‘the legal barrier of confidentiality has been lifted.’ In fact, confidentiality continues. Neither Midwest Adoption Center nor any Confidential Intermediary has the right to share identifying information about other people, which may or may not be in the Confidential Intermediary file. The prohibitions and sanctions set forth in Sections 18.3 (a) are intact. The Confidential Intermediary file may not be released to Ms. Field.”


So, if you choose to use the state-run Confidential Intermediary Program, you should know that there will be yet another file being compiled about you and it will also be withheld from you - permanently.


I believed that after my win in court and a new law stating that I was fit to have my OBC , I would at long last be in possession of all state-held files about me. Wrong!  There's still a file somewhere, layered with dust and stained with spilled coffee stains, with MY NAME on it. This file is being withheld from me by the state.


How can anyone say that adoptees are treated in the same way as non-adopted citizens? It just ain't so.


Grannie Annie

URGENT ACTION ALERT RE: HB 5428

See Illinois Open Organization for an urgent action alert. HB 5428 does not restore civil rights to all adopted adults and it must be stopped in its tracks.

The Senate Judiciary Committee is holding a public hearing on Tuesday April 13. We realize that not everyone feels comfortable doing public speaking but we do need opponents present to help fill the room.

If you cannot make it to the hearing, by all means contact the senators. Contact information is on our Web site.

ACTION ALERT

Illinois Open Organization has an Action Alert posted at www.ilopen.org. Everyone's help is needed to stop HB 5428 in its tracks. You will find a sample letter and email addresses for the senators at our Web site.

Please do not hesitate to contact the senators TODAY!

ILLINOISOPEN ORGANIZATION
http://www.ilopen.org

BASTARD NATION: THE ADOPTEE RIGHTS ORGANIZATION
www.bastard.org
___________________________________________________________________
PRESS RELEASE
March 22, 2010
For Immediate Release

CONTACT INFORMATION

Anita Walker Field, 1-847-677-0594
Marley Greiner, 1-614-571-2999
Mary Lynn Fuller, 1-217-722-4814


ADOPTEE RIGHTS SQUASHED AGAIN IN NEW ILLINOIS BILL – HB 5428.

On March 19, 2010, The Illinois House of Representatives passed a bill that purports to give all adopted adults access to their original birth certificates. On March 23, 2010, HB 5428 GOES TO THE SENATE, awaiting committee assignment.

Under HB 5428, birth mothers will be allowed to file affidavits of denial – meaning that a birth mother can veto an adoptee’s right to access his or her original birth certificate.

THIS IS A DANGEROUS STEP TO TAKE. IT CREATES AND CODIFIES A NEW RIGHT THAT HAS NEVER BEFORE BEEN IN OUR ADOPTION ACT.

2. Allows the state to delete a variety of identifying information from official documents, depending upon a birth mother’s response.

We believe:
HB 5428 needs to be amended in the Senate so that it would restore to ALL adoptees access to their original birth certificates, without any restrictions, such as prior parental approval. If that cannot happen, then HB 5428 must be pulled or left to die in committee.
Text of Bill: http://www.ilga.gov/legislation/fulltext.asp?DocName=09600HB5428lv&SessionID=76&GA=96&DocTypeID=HB&DocNum=5428&print=true

WHAT IS THE DIFFERENCE

In Illinois the original birth certificate is sealed when the final order of adoption is issued. An amended birth certificate is then issued for the adoptee.

The original birth certificate is issued within a short time of the birth. It can include names of both parents. But often when it is known that a child will be placed for adoption, only the name of the mother is included. The line for the father might state, "legally omitted". Often the child will have the same surname as the mother but there are cases where the surname of the father is used. This will usually be when the father's name is included but that is not always the case. Ages for named parents are included and their place of birth.

An amended birth certificate is issued at the time the adoption is finalized. But the date of issuance is often falsified. In fact on mine, the date used was before my parents even knew that I had been born. But this goes along with all the altering that happens. The child's name becomes the one the adoptive parents choose. Sometimes when a child is named at birth, their given name will be kept or used for the middle name. But the surname will become the same as the adoptive parents'. The certificate will show that the adoptive mother gave birth to the child. The address of the adoptive parents will be used and often their occupations are stated. If one did not know better, it would be thought that the child was born to the couple.

It seems to be rather common among those not personally touched by adoption to not know that the adoptee does indeed have an original birth certificate that Illinois adoption laws prohibit them from accessing. Public awareness in this matter is vital so when we speak out for our original birth certificate (OBC) it is understood what we want. Adults not adopted can request and receive their OBC. It is something taken for granted just like we all take different things for granted when there is no problem in obtaining it. Please do not hesitate to explain the difference to those who are not aware that adoptees do have two different birth certificates

TRIBUTE TO ANTHONY "TONY" S. VILARDI

Many of you are aware of the International Soundex Reunion Registry (ISRR). It was founded by Emma May Vilardi in 1975 and was funded by her husband “Tony”. ISRR is a mutual consent reunion registry supported entirely by donations. I have always had the greatest respect for Emma and “Tony”. He stepped in to do even more after his wife’s death until he retired a few years ago.

“Tony” passed away at the age of 78 on June 14, 2009. ISRR has reunited many although I was not one of them. Perhaps if my birth mother had lived longer, she would have registered with ISRR just as I did. After my search was completed I did notify "Tony" and he wrote me a very nice note to include along with returning my registration form. He definitely did not have to go this extra mile. I had notified him because of all the registrations that they receive and thought of it as less paperwork for them to keep on file.

My feeling is that both Emma and "Tony" had a habit of going the extra mile. I have always been quick to refer those searching to ISRR and stress how trustworthy I feel they must be. I have never known them to prey upon the vulnerable as some other registry owners have done.

Thank you Emma & "Tony"! We hope that your dedication will be carried on so the registry continues to reunite people.

Illinois Adoptees - Petitioning the Court

ILLINOIS ADOPTEES - PETITIONING THE COURT

In this blog, I want to talk about the only way Illinois adoptees are allowed by law to get their records unsealed. I must preface my blog with this important fact: I am not an attorney, a legal aide, nor have I have had anything to do with the legal profession. I'm a retired Chicago public school teacher and have been in the adoption reform movement for many years. I'm Grannie Annie and I have been through the Confidential Intermediary System, the Adoption Registry, several private investigators, and finally, in 1997, as a last resort, I went to the Circuit Court of Cook County, pro se, and successfully petitioned for all of my adoption records and my original birth certificate.

I do know of other Illinois adoptees who have been successful in getting their birth records from judges in this state. But not many. I don't want this blog to give you any false hope, because there isn't much to hope for in the Land of Lincoln. Illinois is one tough state for getting records unsealed. Illinois is a "closed state" as far as adoption records are concerned. But since it's still the only way, it deserves as much thought as possible.

I thought it was at least time to talk about our sealed records and bring together some of the stories I've heard with my own experiences.

I plan to throw in as many general and specific tips and opinions and experiences as I can. You might consider this blog like a menu in a Chinese Restaurant. You could choose 3 ideas from Column A, one hint from Column B, and perhaps nothing from Column C. My goal is to present you with as full a menu as I can of things to chose from and ideas to work with. Hopefully, my ideas here can be jumping off points for your own thoughts on "how to."

The issues I want to talk about are not search and/or reunion issues. I am going to try to keep my comments focused on how an adoptee might be able to try and get his or her adoption file and original birth certificate from the court.

Here is the law that all of us Illinois adoptees live under:

"...All adoption records maintained by each circuit court clerk shall be impounded in accordance with the procedures provided by the Illinois Supreme Court's General Administrative Order on Recordkeeping and shall be opened for examination only upon specific order of the court, which order shall name the person or persons who are to be permitted to examine the file. Certified copies of all papers and documents contained in any file so impounded shall be made only on like order..." 750 ILCS 50/18 (from Ch. 40, per 1522) Records, Confidential.

This means that an adoptee has a STATUTORY RIGHT to ask the judge to release his or her original birth records. You do NOT have to go through the Confidential Intermediary System. You may, however, get hit up for $40 for the Adoption Registry. ( Pay to play. After all, we are in Illinois.) If your first petition is turned down, don't think it's all over. You are allowed to AMEND ( not appeal) your petition with new evidence and resubmit it to the court. And believe it or not, you don't have to pay a new filing fee, either.

HOW TO GET STARTED

1. You must write to the county court in the county in which your adoption was finalized. It's wise to call and find out the name of the judge who handles adoption issues so you can address him/her by name in your letter. If you're good at chatting, then the judge's clerk is the person you want to befriend. Chat up the clerk and you never know what help or good advice you may get.

2. Your first contact should probably be a personal letter to the judge asking the court to release to you certified copies of your original birth certificate and/or your adoption file. In this letter, summarize why you need the records; ie: your good cause. In this letter, you might want to request an appointment with the judge to discuss it further. (not all judges will do this.) Or perhaps you could ask the judge how he/she prefers to proceed with your petition.

3. If you don't live in the area now, then you should think of your first letter as your actual petition. Therefore, it should be complete. Lay out your case in a very specific manner, together with all of your supporting evidence ( doctor's letters, etc.)

4. Personally, I believe it would be better to try and make some face to face contact with the judge, if possible. In my humble opinion, it's too easy to turn down a letter.

WHAT SHOULD YOU ASK FOR

Your original birth certificate is held in Springfield by the IL Dept. of Public Health. The adoption file is under the auspices of the county clerk in the county where your adoption was finalized.

You have a choice. You can ask for your original birth certificate, your adoption file, or both. I asked for everything because I figured I'd never get another shot at going to court. You might want to take a safe route and just ask for your "original birth documents" and see what happens. But if the judge should ask you exactly what you are petitioning for, be prepared to be specific in what you want and why. In my case, the judge seemed surprised that I wanted anything more than my original birth certificate. I got the sense that asking for it alone would have been easier.

You should always request your original birth certificate with no deletions, white-outs, or other falsifications. When requesting your adoption file, you might say: "I am requesting my entire adoption file, including but not limited to the adoption decree, petition to adopt, consent to adopt, medical histories, photos, personal letters, and relinquishment documents."

The court is not legally mandated to release any files belonging to any private adoption agency, adoption attorney, or hospital.

Always have your signature notarized and always send your letters by certified mail, return receipt requested.

Remember! Be sure to state, up front in your first letter, that you DO NOT want to avail yourself of the Confidential Intermediary service. If someone asks you why, tell them you are not interested in search and reunion; rather, you need to have your own birth records - now. Otherwise you will most likely get the "bait and switch."

BAIT AND SWITCH

Needless to say, be precise with your request. Do not let them appease you with non-identifying information.

What usually happens in Illinois (at least in Cook County) is that the judge's office will almost always refer all adoptees' requests to the Illinois Adoption Registry Medical Information Exchange (IAMIE) and/or to the Illinois Confidential Intermediary program. Both of these programs are geared for search and reunion only. Original records are NOT routinely issued through either of these systems. There is however one exception. If a "match" is made through the Mutual Consent Registry or the CI program, an original birth certificate will be issued to the adoptee, provided the birth mother cooperates.

How many matches has the Adoption Registry made? Well, from its inception in 1985 through January, 2009, 11,034 people have registered. A grand total of 731 matches were made. You can do the math.

Don't forget! There is no where in the law that says an adoptee must first go through the Confidential Intermediary system before asking the judge to open the records. The CI system and the Adoption Registry are only concerned with locating people; the court is concerned with maintaining the records.

If your goal is to gain possession of your own original records, then it's the judge you want, not confidential intermediaries and not registries.

ILLINOIS IS A "GOOD CAUSE" STATE

Illinois is a "good cause" state which means that the state requires you to provide good cause for your request. Ironically, nowhere does the state tell you what actually constitutes good cause. Therefore, courts look at previous case law to determine what is NOT GOOD CAUSE. I know this sounds crazy, but then, you are in Illinois.

There is one big case in Illinois, in re Roger B., brought by Yesterday's Children in 1979-80. The precedents established in Roger B. are still the barometer used by our courts. Judges look to this case as a precedent for what is NOT GOOD CAUSE.

Therefore, when I was preparing my petition, I tried to find some type of good cause that applied to me but that was not mentioned in Roger B. You want to show that your circumstances are significantly different from those presented in Roger B. [ I have attached a summary of the decisions in re Roger B. at the end of this blog. ]

RELEASE OF RECORDS BASED UPON A SHOWING OF MEDICAL EMERGENCY IS NOT MENTIONED IN ROGER B. RELEASE OF RECORDS BASED UPON A SHOWING OF PSYCHOLOGICAL NECESSITY IS NOT MENTIONED EITHER.

Any reason/s you use for your good cause should be backed up by supporting evidence, the more the better. For example if your request is medical or psychological necessity, then try to have as many letters from doctors, counselors, psychologists, social workers or other professionals as you can get. For both medical and psychological necessity, stress that your problem is a CONTINUING one and that is the reason why you need your records now. Your problem will continue to go on, possibly unanswered or untreated or not properly diagnosed, unless you get your records.

You should also ask the judge to please consider your case within the framework of Doe v. Sundquist (1997 Fed app. 0051P 6 Cir.) This important federal case does not tell a judge to open birth records, but it allows a judge to consider your case in the light of this new case law. That is, Doe v. Sundquist makes it difficult to argue that giving adult adoptees access to their birth records violates any provisions of the federal constitution.

You could remind the judge that you've read or heard that case law 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. This is very important.

Another very important issue is maintaining the integrity of the state's adoption policies. The state is concerned with its adoption process and its confidentiality and what might happen to it if judges started releasing too many adoption records. Therefore, you would want to make your case as narrow and as unique as you can, so the judge will feel confident that if he/she releases records to you, he won't be setting any wide range precedents. Judges do not want to set any precedents. And they don't want any of their cases appealed.

I am a life long member of Bastard Nation. When I decided to petition the court for my records, I informed my friends and colleagues ahead of time. I told them that I would be petitioning for my records only. I was not going to be trying to establish any new case law. I was not on a crusade to get all records opened in Illinois. I know this sounds selfish but that's just the way it is. You can help with these larger issues by joining an adoptee rights organization such as Bastard Nation. My friends were totally supportive of my efforts and were thrilled for me when I won.

One last thing to keep in mind. If you are turned down, that does not mean it's all over. No way! You are permitted to amend your petition by presenting new or additional evidence to bolster your case. I did. Just remember that you are not APPEALING the decision. You are AMENDING YOUR PETITION and would like another hearing.

Good luck.

IN RE ROGER B.

SUMMARY OF NOTES

This is my summary of the decisions outlined in the in re RogerB. Case. [in re Roger B.., 1981, 49 Ill. Dec. 731, 84 Ill, 2^nd, 323, 418 N.E. 2d, 751, appeal dismissed 102 S.Ct. 80, 454, US 806, 70 L.Ed 2^nd 76,]

My source is West Law Annotated Illinois Revised Statutes, 1993, p. 575.

Once again – a caveat. I am not an attorney, I give no legal advice, and I have absolutely no legal experience, other than going to court myself and petitioning for my own records.

The Records, Confidential Section of in Roger B…

1. Does not violate equal protection clause.

2. Does not create a suspect classification, in that status of adoptee does not result at birth, but is derived from legal proceeding, the purpose of which is to protect the best interests of the child, and status of adoptee, conferred by the Adoption Act, actually improves the position of the child by providing a home, support, family unit, and loving care that might otherwise not be present.

3. Does not violate adoptee’s constitutional right to receive information. (U.S.C.A. Const. Amend. 1) in that information sought is product of the judicial process.

4. Does not unconstitutionally infringe upon an adoptee’s right to discover his own identity.

5. Does not violate due process.

6. Is not unreasonable and did not unconstitutionally abridge adoptee’s right to receive information.

7. - Adoptee’s interest in possible inheritance from her natural parents did not constitute good cause.

8. Does not deprive adoptee of property without due process of law since constitutional prohibition against deprivation of property could only attach when right is vested and expectation of inheritance did not constitute vested right.

9. Does not give an adoptee a fundamental right to examine his adoption records.

10. Does not violate adoptees’ rights to equal protection of the laws.

11. Does not violate adoptee’s constitutional right to privacy.

12. Does not allow for a constitutionally protected right to know one’s ancestors.

13. Does not consider adulthood of adoptee by itself “good cause.”

14. Discretion conferred by this paragraph was intended to be exercised upon a showing of good cause.

15. Mandamus was not appropriate remedy by which adoptee could compel circuit court clerk to allow her to examine sealed adoption records.

Resources:

http://www.bastards.org/mediaroom/constitutionalIssues.html

Excellent overview of Constitutional issues relating to adoptee sealed records, including Doe v Sundquist and the case law from Oregon, after Measure 58 passed.

http://law.ubalt.edu/template.cfm?page=664

University of Baltimore, School of Law

Elizabeth Samuels, Professor of Law

Many articles about adoption, including Law Review.

“Severed Roots: The Sealed Adoption Records Controversy”

Northern Illinois University Law Review