Adoption Secrets Revealed
How state law affects disclosure of an adopted person's
Last month's column was about Stephanie's journey to find out about her biological family. She had been adopted over 40 years ago in Colorado. This month, I will talk about what might happen if someone like Stephanie were adopted today in New Mexico. New Mexico's Adoption Act begins at Section 32A-5-3, NMSA, and the regulations implementing this law are at 8 NMAC 26.3. (The law and the regulations call the child who is being adopted "the adoptee.")
Stephanie started to investigate her past because she was having health problems and needed information about her biological family's health history. Also, she wanted to obtain documentation so she could become an enrolled member of the Navajo tribe.
These days, when there is adoption in New Mexico, "full disclosure" of the child's history must be made before the child is even "placed" in the home of the adopting parents (Section 32A-5-12(E)). "Full disclosure" means "all known, nonidentifying information regarding the adoptee, including: (1) health history; (2) psychological history; (3) mental history; (4) hospital history; (5) medication history; (6) genetic history; (7) physical descriptions; (8) social history; (9) placement history; and (10) education" (Section 32A-5-3(M)). So, if she were adopted here and now, Stephanie would already have a wealth of information about her own and her biological family's health history.
Stephanie, her adoptive parents and her own children also would have a statutory right to request and obtain any information the state has for the purpose of enrolling in her "tribe of origin" (Section 32A-5 -40(F)&(G)).
Stephanie had considered trying to locate her biological parents. New Mexico has a fairly elaborate procedure set up in the Adoption Act regulating when the court or the state agency handling adoptions may disclose the identity of a biological parent to the child or to the adoptive parents, or vice versa. No one may disclose the identifying information unless the information is already known, or both the biological parent and the adoptee (or the adoptive parents, if the adoptee is still a child) have filed consents/authorizations to be contacted or identified by the other (Section 32A-5-8 & 40).
If the court does not have those mutual consents, the biological parent or the adoptee (or the adoptive parents if the adoptee is still a child) may file a motion in court to obtain the release of identifying information "for good cause shown" (Section 32A-5-40(E)). "When hearing the motion, the Court shall give primary consideration to the best interests of the adoptee, but shall also give due consideration to the interests of the members of the adoptee's former and adoptive families." The law then sets out seven factors for the court to consider in determining whether "good cause" exists to release the identifying information without consent.
Section 32A-5-41 allows the court to appoint a "confidential intermediary" to find out whether an individual is willing to disclose information, to be identified, or to be contacted. An adult adoptee, the adoptive parent of an adopted child, a biological parent or an adoptee's brother or sister may petition the court to appoint such an intermediary.
Confidential intermediaries must go through training and take an oath of confidentiality. The petitioner must pay the intermediary's actual expenses and the court may authorize a reasonable fee for the intermediary.
If the confidential intermediary finds that the person whose identity is sought has filed a disclosure authorization, the intermediary must release the identifying information to the petitioner who requested the information (the "requestor"), and may assist in contacting and communicating with the individual. If the intermediary finds a signed refusal to authorize disclosure of identity, the intermediary must report this to the requestor and the court.
If the intermediary finds neither an authorization nor a refusal to disclose, the intermediary is to "make a reasonable search for and discreetly contact the individual" to find out if the individual is willing to release information or meet or communicate with the requestor. If everyone agrees, the intermediary is to facilitate a meeting or communication between the parties. If the intermediary finds that the person sought is dead, this is reported to the requestor and the court.
In any of the circumstances in which the person sought does not authorize disclosure, the requestor may ask the court to order disclosure "for good cause shown."
Boy, when the government gets involved in something, it can get really complicated! And this article has only referred to the Adoption Act. The adoption regulations carrying out the act are even longer.
While researching this article, I tried to interview a representative of the State of New Mexico Children, Youth and Families Department (CYFD) who works on adoptions. I wanted to know what CYFD tells adoptive parents, biological parents and adoptees about disclosing their identities. The woman in the local office wanted to help, knowing that publicity about adoptions might encourage people to adopt more of the many children waiting for a new home.
Unfortunately, her Santa Fe superiors imposed unacceptable conditions: Questions must be submitted in advance and in writing, and my article must be submitted to them for their approval before it is published. I tried to contact the Santa Fe CYFD office to see if they would give me a brochure or pamphlet concerning adoption disclosure. In spite of repeated attempts and messages left, I could never contact them.
A family who adopted a child through CYFD told me that CYFD encourages "open" adoptions. An "open" adoption is when everyone knows each other's identities right from the beginning. Meetings and communications are up to the mutual consent of the people involved. If this is true, CYFD is to be applauded for encouraging people in adoptions to be open with each other. I just wish the government would practice what it preaches!
This column is an update of one it was originally published in 2000. Next month, The People's Law uncovers bigamy in New Mexico!
Robert (Tito) Meyer practices law in Las Cruces, representing people who have been injured in accidents and the families of people who have been killed in accidents. Contact him at firstname.lastname@example.org, (505) 524-4540,
(800) 610-0555, or PO Box 1628, Las Cruces, NM 88004. This column is not intended to provide legal advice to any specific person, or with respect to any particular problems or situations. To find a lawyer, call the State Bar of New Mexico referral service, (800) 876-6227.