Confidentiality & Access to Texas Adoption Records: A Historical Perspective

by Diane M. WangerSeptember - October 1997 Issue, Adoption Triad Forum
This article discusses the history of adoption laws in Texas as it relates to the controversial issue of access to adoption information by adoptees, birth parents, and others. One cannot consider free access by adoptees without hearing the battle cry: What about the confidentiality of the birth parents? I set out to find the statutory basis for birth parent confidentiality, as no cases exist.
This article does not discuss constitutional issues or social issues that relate to access to adoption records. These have been previously discussed in length by many other authors.
No Adoption at Common Law
Adoption is a statutory creation, its sources being found in the Roman and civil law systems.[1] The first adoption law in Texas was in 1850 and allowed one to "adopt" a legal heir by filing a written affidavit with the county clerk's office in the same manner as a deed! [2]
It was not until 1907 that the law recognized that biological parents might have an interest in the adoption. The law allowed them to execute an affidavit transferring parental authority and custody to the "adoptive" parents.[3]
In 1920 a provision was added in the law to allow adoption in the case of voluntary abandonment of the child by a parent. In the event a child was abandoned for a period of three years, the parents were then held to have transferred their parental authority and custody to the adopting party.[4]
In the beginning, the status of being adopted was a matter of public record. Not only were the adoption "affidavits" publicly recorded, but birth certificates were stamped with a large illegitimate" across the front. The life of a person branded illegitimate in the 1920's was not very promising. Adoptive parents wanted to be sure that their adopted children would be entitled to the same opportunities as natural children, and that they would not be ostracized by society. Also, remember that in the 1920's, unlike today, there was a shortage of adoptive parents, not children.
If one can believe Hollywood, the movie, Blossoms in the Dust, starring Greer Garson, portrayed Edna Gladney as the driving force behind adoption records becoming confidential. This confidentiality would secure the status of the adopted child as being the child of the adoptive parents for all purposes. No one would be able to trace illegitimacy.
Adoption Records Sealed in 1931
Gladney's efforts paid off in 1931 when the 42nd legislature enacted the following:
Section 10. The files and records of the court in adoption proceedings shall not be open to the inspection or copy by other persons than parties interested and their attorneys, (emphasis added) except upon order of the court especially permitting inspection of the records except that all judgments, orders and decrees of the Court may be open to inspection by any person and certified copies may be obtained from the clerk of the court.[5]
Interestingly, the underlined words were added as an amendment in the Senate.[6] One has to wonder how confidential an adoption was if anyone had access to the judgment!
The law also required the consent of the living parents, except in the case of abandon-ment of a child for at least three years. This time was shortened to two years in 1937.[7]
It is important to note that this statute and the others that followed, dealt with the closing of access to adoption records as opposed to termination records. This author could not document any legislative intent to protect birth parents from the children they bore until 1989.
In 1951, the law was modified to allow natural parents to confer on licensed child placing institutions the power to place children for adoption and the power to consent to the adoption without disclosing to the natural parents the names of the adoptive parents. Prior to this change, blind placement was not permitted, at least in the law.[8]
In 1965, the 59th legislature expanded on the confidentiality of the records of the adopted person by restricting access to information, (about the adoption, not the termination), held by state agencies and licensed child placing agencies. However, agencies could use or divulge information which they felt was in the best interest of the child.[9] No consideration was given to the "privacy" interests of birth parents from their children.
This same legislature also added Article 2332a - Confidentiality of Records which provided that records relating to dependency hearings on children born out of wedlock are confidential and may not be disclosed other than to . . . (2) a party to the dependency hearing or his attorney. . . .[10]
Clearly, the legislature discerned a difference between the right of a child to have information about their birth parent versus the right of the public to know the details of an undesired pregnancy. Sadly this distinction is lost in most discussions on the matter today.
The statute further went on to allow that the court could order disclosure, not on a showing of good cause, but if the court is satisfied that it would further the ends of justice.[11] This author does not know what was meant by "the ends of justice," but apparently this was the precursor to "good cause."
The cited legislative need for the modifications and additions to the existing law was that the law made no provision for protection of the confidential nature of adoption records filed with the State Department of Public Welfare and licensed child placing agencies, although similar information held by the courts was protected.[12]
Parties Lose Access in 1973
With the codification of the Family Code by the 63rd legislature in 1973, a significant change was made relating to confidentiality. The law established the Central Record File. Thereafter all adoption decrees and records were transmitted to the State Department of Public Welfare and were held confidential.
For the first time, the law restricted access to adoption records to everyone, whether or not they were a party to the proceeding. No person is entitled to access to or information from these records except as provided by this section or on an order of a district court in Travis County for good cause.[13] But again, there was no similar confidentiality for the termination file.
This change did not affect adoptions consummated prior to its enactment, as it spoke only to adoptions granted after the effective date.
A search for the legislative intent behind this significant change was provided in a phone interview on August 15, 1997 with Don Adams, the Senate sponsor for the 1973 Family Code. Adams related that at that time the State Bar Legislative Council was not held in high regard by legislators, but the State Bar General Counsel, a friend of his, came to him with the family code draft. Due to his own interest in the subject, including adoption, Adams chose to sponsor the bill.
One must remember that this was the session that created no-fault divorces and allowed the state to remove abused children from parents, the two areas of the code causing heated debate.
Adams recalled the legislative code attempted to codify the adoption laws as they had grown up, particularly in relation to termination of parental rights. He remembers very clearly that they did not want the public or the birth parent to have access to adoption records; it was none of their business. He remembers that the court had the option to seal or not seal the records; they desired to take away any discretion on the part of the court. This remark was interesting in that the law did not provide judges the discretion to seal the file until 1975.
When asked about the effect that the law had relating to terminating access of information to adoptive parents and adoptees, Adams stated he had not thought about that issue specifically. In his mind, adoptive parents already had access to the information and that closing the court records would not have a practical effect.
Explaining the "good cause" provision, Adams stated that he knew it would not be proper to close the records forever. "Good cause" was in the draft provided by the State Bar Legislative Council and seemed reasonable to him at the time. I was interested in Adams' definition of "good cause". He said essentially, it was whatever a good lawyer could convince a judge it was!
By 1975, adoption records were by outward appearances closed to all. The 64th legislature required the district clerks' offices as well as the Texas Department of Human Services to keep adoption records, (not termination records), confidential. It deleted the requirement to transfer all adoption records to the Central File. Now, only the decree was to be sent. It also gave the court that granted the adoption the right to open the records in addition to any district court in Travis County. [14]
One can argue that adoptions finalized prior to the effective date of Sept. 1, 1973 would still be subject to the law existing at that time. The new law was to govern all proceedings, orders, and judgments brought after it takes effect. . . . All things done properly under any previously existing rule or statute prior to the taking effect of this act shall be treated as valid.[15] The prior law, when properly" followed, allowed access to records by a party. Because this right existed without the need to bring a proceeding" or acquire an order or judgment", does the right not still exist?
Termination Files are not Closed
The same legislature that closed access to the district clerks' adoption records also enacted a separate law that gave the court the right to seal the termination and adoption file on the motion of the court or any party.[16] But if the termination file was not sealed by the judge, by implication there is still access to it. The Attorney General came to the same conclusion in 1976, when it issued the following opinion:
The records maintained by a district clerk pertaining to a suit seeking the termination of the parent-child relationship are not confidential unless the court orders the file in such case sealed.[17]
The 68th legislature (1983) deleted the right of a Travis County District court to open records and left the decision solely to the court that granted the adoption.
Birth Parent Identity Protected... Sort-of
In 1989, the year in which the Health, Social, Educational and Genetic History Report was created, the legislature granted to adoptive parents and adult adoptees the right to access to all of the information, working papers, reports and records relating to the social study on the child. This information was to be edited to protect the identity of the birth parent.[18] Remember, however, termination files are still accessible unless there is a specific order sealing the particular file. And this provision did not relate in any way to court records.
The law, insofar as it relates to confidentially, has essentially remained the same from 1989 to the present.[19]
Trends on the Horizon
Many legislative bodies, nationally and internationally, are grappling with the issue of allowing access to adoption records to adoptees, birth parents and other "interested parties" such as siblings. Kansas and Alaska have allowed access to records for decades. These states have significant higher adoption rates per capita and significantly lower abortion rates per capita than Texas.[20]
Tennessee passed a law allowing access to adoption records in 1996 that passed federal constitutional muster at the court of appeals level.[21] It is scheduled to be heard by the U.S. Supreme Court in October, 1997.
Montana passed a law in the past several months giving adoptees born before 1961 direct access to their records; adoptees born from 1961 through 1996 access through an intermediary; and adoptees born after 1996 access after reaching the age of 18.
Great Britain allowed access for adoptees in The Children Act in 1975. New Zealand allowed access for all triad members in 1987. New Zealand's law provided for the parties to file a contact veto which would allow access to the information, but a pro-hibition against using it. The contact vetoes expired in 10 years. Only five percent of parties involved originally filed vetoes. Ninety percent of those vetoes have not been renewed.[22] New South Wales allowed adoptees access to their birth certificates in 1991 under the New South Wales Adoption Information Act.
British Colombia passed an open records law in 1996 which has a disclosure veto provision.[23] From November 1996 though July 1997 less than 3000 people filed a disclosure veto out of 70,000 adoptions. A significant portion of these represent no contact vetoes under the old Acts which were converted to no disclosure under the new Act.[24]
Additionally, Scotland opened records in 1930, Israel in 1960 (at age 18), Holland in 1956 (at age 14, then, reduced to age 12 in 1979), Finland in 1925, and Australia/Victoria in 1984.
Two laws affecting access to adoption records were introduced in the Texas House of Representatives and the Senate in the 75th legislature. Neither provisions passed for very different reasons.[25] It is reasonable to expect that more bills allowing access to records will be filed in 1999. Requests have been made to the Speaker of the House and the Lieutenant Governor to charge an interim committee to study the sole issue of access to information. At this writing, a tentative decision to charge a committee in the House has been made.
Summary
The following is clear from the statutory history of adoption law:
Terminations are not now, and have never been, closed to the adoptee.
Prior to 1973, all parties to adoptions had access to the information in court file.
In addition, the trend as represented by other jurisdictions is that access to records is a right whose time has come.
The author thanks Judith Wells, Judge of the 325th District Court, for her editing help. Reprinted here with permission by the Texas Center for the Judiciary for whom the original paper was prepared. Please freely duplicate this article giving proper credit.
SOURCES for CONFIDENTIALITY AND ACCESS TO ADOPTION RECORDS: A HISTORICAL PERSPECTIVE
Rollison, Wills 56(1939).
Acts Jan. 16, 1850.
Acts 1907, 30th Leg. Pg. 103.
Acts 1920, 36th Leg., 3rd C.S., p. 115.
Section 10, Art. 46a. V.T.C.S. as enacted by the 42nd Legislature, regular session, 1931. This wording stayed essentially the same until 1973.
Journal of the Senate of Texas, 193`, pg. 1290.
Acts 1937, 45th Leg., p. 1324.
Acts 1951, 59th Leg., p. 388.
Section 10, Art. 46a, V.T.C.S., as enacted by the 59th legislature, regular session, 1965. Nothing contained in this act shall prohibit the licensed Agency from disclosing and/or using such information to...and/or for the purposes which the licensed Agency considers to be in the best interest of the child or children to be adopted or who shall have been adopted.
Vernon's Ann. Civ. St. art. 2332a, 1-3
Id at 2
Acts1965 59th Leg., p. 324
V.T.C.A. Family Code 11.17 (1973)
V.T.C.A. Family Code 11.17(d)
Acts 1973, 63rd Leg., p 1459
V.T.C.A. Family Code 11.17, subsec. (f)
Op. Atty. Gen. 1976, No. H-826
Acts 1989, 71st Leg., p 4957.
V.T.C.A. Family Code 161.210, 162.006, 162.018, 162.022
Flango and Flango, How Many Children Were Adopted in 1994, National Center for Court Statistics, p. 1021-22, 1995. The Alan Guttmeier Institute Report prepared for NJ Coalition for Openness in Adoption, Feb. 1995. Center for Disease Control Reported Adoptions and Abortion Ratios, Kansas and U.S. 1971-1994.
Doe v. Sundquist, electronic citation-1997 Fed. App 0051P (6th Cir.) File name 97a0051p06. See Appendix A.
The author spoke with Keith Griffith, M.B.E. on August 27, 1997. Griffith was involved with the drafting of the 1987 law and did the primary research for the legislators. He just published a book entitled New Zealand Adoption History & Practice, Social and Legal 1940-1996, ISBN o-473-0000-0, which is the 'hornbook' of adoption information in New Zealand. Griffith recited that public perception and attitudes have changed in New Zealand over the years and the public generally does not see the need for secrecy. He indicated there had been 20,000 reunions between adoptees and birth parents in a country with a population of only 3.3 million.
Bill 51, 1995 Adoption Act British Columbia
Andrew McBride, Director, Support Services and Client Registry., British Columbia Vital Statistics Agency. http://www.hlth.gov.bc.ca/vs/adoption
The first was H.B. 1835/S.B. 1445, which would have given adoptees the right to their birth certificate after their 21st birthday. H.B. 1091 (a comprehensive adoption bill) was amended on the House floor to add the text of H.B. 1835. After some debate, the amendment was tabled. The original filed version of H.B. 1091 included within it a provision dealing with qualifications for confidential intermediaries. Although cited by some to be offered as a compromise to the political forces desiring liberal access to records, it was these same forces which requested that the House sponsor delete the provisions from H.B. 1091; this was done by amendment on the House floor.