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