Friday, May 23, 2008

Immoral, But Lawful?

...but what else is new? It's adoption!

As some may know, I have been asking my agency - Jewish Child Care Association (aka JCCA aka Ametz) for a copy of the surrender papers I signed in 1968 for approximately 30 years.

I was told that the NYC agency was not permitted, by law, to reveal that information, despite knowing that I had found my daughter, been reunited, and that she was now deceased.

I asked what law prohibited them from telling me. I was told on April 21, 2008:
  • New York State Social Services Law, Article VI - Children, Title I - Care and Protection of Children, Section 372 - Records and Reports
  • New York State Domestic Relations Law, Article VII - Adoption, Title II - Adoption from an Authorized Agency, Section 114 - Order of Adoption
I am not an attorney. I welcome attorneys to "translate" the text below for me.

However, what I do know is this: I did a search for the word "surrender" since I was asking for was a copy of my surrender or relinquishment of parental rights papers. You can see them highlighted. A search for parental rights yielded nothing.

So, while these regulations may pertain to adoption records, the surrender of parental rights is taken PRIOR to any adoption and these regaulations do not seem yo apply to then, as they are not mentioned therein.
It seems as if when they were written there was absolutely no thought whatsoever given to any "rights" of the surrendering parent. Rights? What rights? Clearly not one thought to our right to papers we signed, or to any alleged "promises" of privacy.

Mothers will be interested in the section in bold about what information is available to aps, however... so much for the "protection" of our confidentiality once again!

§ Section 372. Records and reports. 1. Every court, and every public board,
commission, institution, or officer having powers or charged with duties in relation to abandoned, delinquent, destitute, neglected or dependent children who shall receive, accept or commit any child shall provide and keep a record showing: (a) the full and true name of the child,
(b) his sex and date and place of birth, if ascertainable, or his
apparent age,
(c) the full and true names and places of birth of his parents, and
their actual residence if living, or their latest known residence, if
deceased or whereabouts unknown and the name and actual residence of any other person having custody of the child, as nearly as the same can reasonably be ascertained,
(d) the religious faith of the parents and of the child,
(e) the name and address of any person, agency, institution or other
organization to which the child is committed, placed out, boarded out, or otherwise given into care, custody or control,
(f) the religious faith and occupation of the head or heads of the
family with whom the child is placed out or boarded out and their
relationship, if any, to the child,
(g) if any such child shall die, the date and cause of death and place
of burial,
(h) any further disposition or change in care, custody or control of
the child,
(i) the date or dates of reception and of any subsequent disposition
or change in care, custody or control and, in case of adoption, the name and title of the judge or surrogate making the order of adoption, the date of such order and the date and place of filing of such order,
(j) the reasons for any act performed in reference to such child
herein required to be recorded, together with such further information as the department may require; and shall make to the department upon blanks provided by the department reports of each such child placed out or boarded out, containing the information herein required to be kept; and shall furnish such information to any authorized agency to which any such child shall be committed or otherwise given into custody.
2. Every charitable, eleemosynary, reformatory, or correctional
institution, public or private, incorporated or unincorporated, and
every agency, association, corporation, institution, society or other
organization which shall receive, accept, or admit any child whether or not in receipt of payments from public funds for the support of such child shall provide and keep a record as described in subdivision one, and also showing how, by whom and for what reason such child shall have been given into its custody or committed to it and shall make reports of each such child to the department upon blanks provided by the department giving all the information required by subdivision one to be recorded together with such further information as the department may require. Except as to children placed out, boarded out or surrendered or for whom guardianship is accepted or adoption provided, the requirement of this section shall not apply to hospitals, day nurseries, eleemosynary day schools, and summer and vacation homes and camps, or to institutions for the care of convalescent, anaemic, under-nourished or cardiac children, preventoria, working boys' homes, emergency shelters and schools for the blind and for the deaf, but all such hospitals, homes and institutions shall keep such records and make to the department such reports as the department may require.
3. Such records maintained by the department or an authorized agency, including a local social services district, regarding such children are confidential, provided, however, that such records are subject to the provisions of article thirty-one of the civil practice law and rules. When either the subject foster child, or such child's parent, or such child's guardian if any, is not a party to the action, a copy of the notice or motion for discovery shall be served upon such parent, guardian, and child and, if the child is still a minor, the child's law guardian. Such persons may thereafter appear in the action with regard to such discovery. Where no action is pending, upon application by a parent, relative or legal guardian of such child or by an authorized agency, after due notice to the institution or authorized agency affected and hearing had thereon, the supreme court may by order direct the officers of such institution or authorized agency to furnish to such parent, relative, legal guardian or authorized agency such extracts from the record relating to such child as the court may deem proper. The department through its authorized agents and employees may examine at all reasonable times the records required by this section to be kept.
4. (a) All such records relating to such children shall be open to the
inspection of the board and the department at any reasonable time, and the information called for under this section and such other data as may be required by the department shall be reported to the department, in accordance with the regulations of the department. Such records kept by the department shall be deemed confidential and shall be safeguarded from coming to the knowledge of and from inspection or examination by any person other than one authorized, by the department, by a judge of the court of claims when such records are required for the trial of a claim or other proceeding in such court or by a justice of the supreme court, or by a judge of the family court when such records are required for the trial of a proceeding in such court, after a notice to all interested persons and a hearing, to receive such knowledge or to make such inspection or examination. No person shall divulge the information thus obtained without authorization so to do by the department, or by such judge or justice.
(b)(i) Notwithstanding any inconsistent provision of law to the
contrary, records relating to children kept pursuant to this section
shall be made available to officers and employees of the state comptroller or of the city comptroller of the city of New York, or of the county officer designated by law or charter to perform the auditing function in any county not wholly contained within a city, for the purposes of a duly authorized performance audit, provided that such comptroller shall have certified to the keeper of such records that he or she has instituted procedures developed in consultation with the department to limit access to client-identifiable information to persons requiring such information for purposes of the audit, that such persons shall not use such information in any way except for purposes of the audit and that appropriate controls and prohibitions are imposed on the dissemination of client-identifiable information obtained in the conduct of the audit. Information pertaining to the substance or content of any psychological, psychiatric, therapeutic, clinical or medical reports, evaluations or like materials or information pertaining to such child or the child's family shall not be made available to such officers and employees unless disclosure of such information is absolutely essential to the specific audit activity and the department gives prior written approval.
(ii) Any failure to maintain the confidentiality of client-identifiable information shall subject such comptroller or officer to denial of any further access to records until such time as the audit agency has reviewed its procedures concerning controls and prohibitions imposed on the dissemination of such information and has taken all reasonable and appropriate steps to eliminate such lapses in maintaining confidentiality to the satisfaction of the department. The department shall establish the grounds for denial of access to records contained under this section and shall recommend, as necessary, a plan of remediation to the audit agency. Except as provided in this section, nothing in this paragraph shall be construed as limiting the powers of such comptroller or officer to access records which he is otherwise authorized to audit or obtain under any other applicable provision of law. Any person given access to information pursuant to this paragraph who releases data or information to persons or agencies not authorized to receive such information shall be guilty of a class A misdemeanor.
4-a. Notwithstanding any provisions of law to the contrary, social services districts shall provide a written summary of services rendered to a child upon the request of a probation service conducting an investigation pursuant to the provisions of section 351.1 of the family court act. Information provided to a probation service pursuant to the provisions of this subdivision shall be maintained by such service according to the provisions of subdivision five of section 351.1 of the family court act.
4-b.Notwithstandingany other provision of law, foster care
information governed by this section may be released by the department or an authorized agency to a person, agency or organization for purposes of a bona fide research project. Identifying information shall not be made available, however, unless it is absolutely essential to the research purpose and the department gives prior approval. Information released pursuant to this subdivision shall not be re-disclosed except as otherwise permitted by law and upon the approval of the department.
5. The requirements of this section to keep records and make reports shall not apply to the birth parent or parents, or relatives within the second degree of such parents. The reception of a child, or the power to receive the same, shall not make this section applicable to a humane society, or to a society for the prevention of cruelty to children.
6. The provisions of this section as to records and reports to the
department shall apply also to the placing out, adoption or boarding out of a child and the acceptance of guardianship or of surrender of a child.
7. An authorized agency as defined in paragraphs (a) and (b) of
subdivision ten of section three hundred seventy-one of this chapter or any primary or secondary school or an office of the division for youth, except agencies operating pursuant to article nineteen-H of the executive law, who shall receive, accept, enroll or commit any child under such circumstances as shall reasonably indicate that such child may be a missing person shall make inquiries of each such child to the division of criminal justice services in a manner prescribed by such division; provided that as used in this subdivision a court shall not be included within the definition of an authorized agency. If such child appears to match a child registered with the statewide central register for missing children as described in section eight hundred thirty-seven-e of the executive law, or one registered with the national crime information center register, such agency shall immediately contact the local law enforcement agency.
8. In any case where a child is to be placed with or discharged to a
relative or other person legally responsible pursuant to section ten
hundred seventeen or ten hundred fifty-five of the family court act,
such relative or other person shall be provided with such information by an authorized agency as is provided to foster parents pursuant to this section and applicable regulations of the department.

§ Section 114. Order of adoption. 1. If satisfied that the best interests of
the adoptive child will be promoted thereby the judge or surrogate shall make an order approving the adoption and directing that the adoptive child shall thenceforth be regarded and treated in all respects as the child of the adoptive parents or parent. In determining whether the best interests of the adoptive child will be promoted by the adoption, the judge or surrogate shall give due consideration to any assurance by a commissioner of social services that he will provide necessary support and maintenance for the adoptive child pursuant to the social services law. Such order shall contain the full name, date and place of birth and reference to the schedule annexed to the petition containing the medical history of the child in the body thereof and shall direct that the child's medical history, heritage of the parents, which shall include nationality, ethnic background and race; education, which shall be the number of years of school completed by the parents at the time of the birth of the adoptive child; general physical appearance of the parents at the time of the birth of the adoptive child, which shall include height, weight, color of hair, eyes, skin; occupation of the parents at the time of the birth of the adoptive child; health and medical history of the parents at the time of the birth of the adoptive child, including all available information setting forth conditions or diseases believed to be hereditary, any drugs or medication taken during the pregnancy by the child's mother; and any other information which may be a factor influencing the child's present or future health, talents, hobbies and special interests of parents as contained in the petition be furnished to the adoptive parents. If the judge or surrogate is also satisfied that there is no reasonable objection to the change of name proposed, the order shall direct that the name of the adoptive child be changed to the name stated in the agreement of adoption and that henceforth he shall be known by that name. All such orders made by a family court judge of Westchester county since September first nineteen hundred sixty-two, and on file in the office of the county clerk of such county shall be transferred to the clerk of the family court of such county. Such order and all the papers in the proceeding shall be filed in the office of the court granting the adoption and the order shall be entered in books which shall be kept under seal and which shall be indexed by the name of the adoptive parents and by the full original name of the child. Such order, including orders heretofore entered, shall be subject to inspection and examination only as herein after provided. Notwithstanding the fact that adoption records shall be sealed and secret, they may be microfilmed and processed pursuant to an order of the court, provided that such order provides that the confidentiality of such records be maintained. If the confidentiality is violated, the person or company violating it can be found guilty of contempt of court. The fact that the adoptive child was born out of wedlock shall in no case appear in such order. The written report of the investigation together with all other papers pertaining to the adoption shall be kept by the judge or surrogate as a permanent record of his court and such papers must be sealed by him and withheld from inspection. No certified copy of the order of adoption shall issue unless authorized by court order, except that certified copies may issue to the agency or agencies in the proceeding prior to the sealing of the papers. Before the record is sealed, such order may be granted upon written ex parte application on good cause shown and upon such conditions as the court may impose. After the record is sealed, such order may be granted only upon notice as hereinafter provided for disclosure or access and inspection of records. The clerk upon request of a person or agency entitled thereto shall issue certificates of adoption which shall contain only the new name of the child and the date and place of birth of the child, the name of the adoptive parents and the date when and court where the adoption was granted, which certificate as to the facts recited therein shall have the same force and effect as a certified copy of an order of adoption.
2. No person, including the attorney for the adoptive parents shall
disclose the surname of the child directly or indirectly to the adoptive
parents except upon order of the court. 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. Nothing contained herein shall be deemed to require the state commissioner of health or his designee to secure a court order authorizing disclosure of information contained in adoption or birth records requested pursuant to the authority of section forty-one hundred thirty-eight-corsection forty-one hundred thirty-eight-d of the public health law; upon the receipt of such request for information, the court shall transmit the information
authorized to be released there under to the state commissioner of health or his designee.
3. In like manner as a court of general jurisdiction exercises such
powers, a judge or surrogate of a court in which the order of adoption was made may open, vacate or set aside such order of adoption for fraud, newly discovered evidence or other sufficient cause.
4. Good cause for disclosure or access to and inspection of sealed
adoption records and orders and any index thereof, hereinafter the "adoption records", under this section may be established on medical grounds as provided herein. Certification from a physician licensed to practice medicine in the state of New York that relief under this subdivision is required to address a serious physical or mental illness shall be prima facie evidence of good cause. Such certification shall indentify the information required to address such illness. Except where there is an immediate medical need for the information sought, in which case the court may grant access to the adoption records directly to the petitioner, the court hearing petition under the subdivision shall appoint a guardian ad litem or other disinterested person, who shall have access to the adoption records for the purpose of obtaining the medical information sought from those records or, where the records are insufficient for such purpose, through contacting the biological parents. The guardian or other disinterested person shall offer a biological parent the option of disclosing the medical information sought by the petitioner pursuant to this subdivision, as well as the option of granting consent to examine the parent's medical records. If the guardian or other disinterested person appointed does not obtain the medical information sought by the petitioner, such guardian or disinterested person shall make a report of his or her efforts to obtain such information to the court. Where further efforts to obtain such information are appropriate, the court may in its discretion authorize direct disclosure or access to and inspection of the adoption records by the petitioner.

2 comments:

Mary Stevenson said...

Thank you for posting this. I have been trying to get Catholic Charities in Rochester NY to provide my records to no avail. They have not responded to my several letters or numerous telephone messages over the last 4-5 years in spite of my reunion and the fact that my daughter found me through a court order based on medical need in 1995 and for which they had to provide non-id info to her. I am not asking for any information re her adoptive parents but only records pertaining to me to help me overcome my trauma induced amnesia. I've met her adoptive parents on several occasions but that is meaningless to the agency.

I'm living in Illinois now and it is difficult for me to follow NY's legislative action on adoption. If ever I can help please let me know.

Thanks again for your efforts!
Mary Stevenson

AdoptAuthor said...

Mary, Thanks.

I am considering a class action suit.

I cannot tell you the number of letter of mine they ignored....including the most recent to tell them that the NT laws they cited do not mention surrender papers! I also let them know that I have in my possession another mother's surrender papers from NYS!

Let's make sure we keep in ouch with this issue and try to get more mothers who surrendered in Ny.

If I do a class action - I need to find out if it can be on behalf of ALL mothers regardless of state.
I want to see it go to the Supreme Court (though not this one).

RussiaToday Apr 29, 2010 on Russian Adoption Freeze

Russi Today: America television Interview 4/16/10 Regarding the Return of Artyem, 7, to Russia alone

RT: Russia-America TV Interview 3/10

Korean Birthmothers Protest to End Adoption

Motherhood, Adoption, Surrender, & Loss

Who Am I?

Bitter Winds

Adoption and Truth Video

Adoption Truth

Birthparents Never Forget