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Friday, March 23, 2007

Ind. Courts - More on "Star files challenge to open adoption records" [Correction]

The Indianapolis Star this morning has the expanded version of it story, first posted yesterday afternoon (see ILB entry here) on its suit [see correction] against the Clerk of the Indiana Courts to allow access to the briefs in the appeal of the case, In the Matter of the Adoption of Infants H, Marion County Dept. of Child Services v. Stephen Melinger et al.. [Correction - The Star isn't suing the clerk; they are making a request for access under Administrative Rule 9--like a request under the Access to Public Records Act.]

The Star has filed a Request for Evidentiary Hearing Under Ind. Admin. Rule (9)(I)(2) - access it here. The Star has also filed a 22-page Verified Petition for Access to Judicial Records - access it here.

Here is the outline of the Star's argument:

A. Under The Common Law and the First Amendment, Public Access to Judicial Records is Presumed.
1. The Policy Favoring Public Access.

2. The Historic Public Nature of Adoption Proceedings.

3. Public Access to Documents Used In Judicial Decision-Making.

B. Access Also Should Be Presumed Under The Indiana Constitution, Given That Its Protection of Free Expression Is Broader Than The First Amendment.

C. The Star Has Presumptive Common Law and Constitutional Rights of Access To The Records Of This Adoption Appeal.

1. The Adoption Statute Cannot Preclude Access to Judicial Records.

2. The Adoption Statute's Absolute Ban On Public Access To Judicial Records Violates The Separation of Powers.

D. In Accordance With Administrative Rule 9, The Court Should Grant A Hearing on The Star's Petition for Access to the Melinger Adoption Records.
Here is some of the introductory language from the Petition:
Indiana Newspapers, Inc., d/b/a THE INDIANAPOLIS STAR, seeks access, pursuant to Ind. Admin. Rule 9(I), to the judicial records in this appeal of the trial court's order approving a New Jersey man's adoption of twin girls born to a surrogate mother. Unlike most adoptions, this case was the subject of extensive public interest and news coverage as a result of the intervention of child protection personnel, who feared that the adoption was not in the best interests of the children. The Marion County juvenile court allowed public access to a related child-welfare proceeding that stemmed from those concerns. The controversy also led to the introduction of legislation in the Indiana General Assembly to prevent the state from becoming a haven for adoptions by out-of-state residents of children born to surrogate mothers.

This adoption proceeding raises serious issues of public importance as to the trial court's compliance with the Interstate Compact on the Placement of Children, Ind. Code 12-17-8-1 et seq. and 31-19-1-1 et seq. and Indiana law precluding adoption of children for placement in foreign states unless the children are shown to have special needs. Ind. Code 31-19-2-3. As THE STAR demonstrates in greater detail below, under the common law, the First Amendment, and arguably the free expression clause of the Indiana Constitution, access to these court records is presumed. This presumption applies to court records of adoption proceedings, which were public when the U.S. Constitution and the Indiana Constitution were adopted. This presumption can be overcome only by a showing of a compelling governmental interest.

The Indiana adoption statute, by which the General Assembly declared that all court records relating to adoptions were confidential, cannot bar THE STAR'S access to these records. Such statute impermissibly intrudes on the province of the judiciary, and thus violates the separation of powers clause of the Indiana Constitution. Even if the statute were not constitutionally infirm, Admin. Rule 9 gives the Court discretion to provide access to otherwise confidential records, although it impermissibly places on the requestor the burden of justifying access. But even if the Rule 9(I)'s standard were applied, the requirements for access are met in that: (a) extraordinary circumstances exist which require deviation from the confidentiality requirements; (b) the public interest will be served by allowing access; (c) dissemination of the information to which access is sought will create no significant risk of substantial harm to any party, third parties, or the general public, and (d) release of the information will create no prejudicial effect on on-going proceedings.

From Kevin Corcoran's story today:
A juvenile court judge allowed public access in 2005 to the Melinger child welfare case file, which included information about the adoptions, citing the legal and ethical issues raised by the case. Several months later, a different trial judge removed the child welfare file from public view.

The clerk of Indiana's appellate courts, Kevin S. Smith, won't disclose records in the appeal, citing a state law that makes adoption filings strictly secret. Some Indiana lawmakers say his stance takes their goal of creating a zone of privacy around adoptions too far.

"The principals involved in that case are not confidential," said Senate Judiciary Chairman Richard D. Bray, R-Martinsville. "That's public policy."

A sidebar to the story notes:
When legal adoption began in the United States, all records were open.

• History: Adoption records filed in Indiana before July 9, 1941, were open at the time they were filed and remain open today. But by 1960, more than half of all states had shut down access to modern adoption records, often in response to a 1941 amendment to the Social Security Act that required child welfare records be kept confidential. Some states seeking to meet the federal mandate interpreted this to include adoption files.

• Elsewhere: No state makes adoption records from recent decades available to the general public, but at least 35 states, not including Indiana, allow access to non-identifying information.

The focus of this request, as I understand it, however, is not to open all adoption records. It is to allow access to the filings (the "judicial records") in this specific appeal.

Posted by Marcia Oddi on March 23, 2007 07:40 AM
Posted to Indiana Courts