Amended Complaint
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION
PROMISE DOE, KIMBERLY C. and RUSS
C., and SMALL WORLD MINISTRIES, INC. |
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V. |
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No. 3:96-0599 JUDGE NIXON
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DONALD SUNDQUIST, Governor of the
State of Tennessee, in his official capacity; CHARLES BURSON, Attorney
General of the State of Tennessee, in his official capacity; and LINDA RUDOLPH,
in her official capacity as the Commissioner of the Department of Human Services
for the State of Tennessee, |
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I. Preliminary Statement
1. This is a civil rights action brought pursuant to 42
U.S.C. § 1983, challenging certain provisions of the Tennessee Public Acts of
1996, Chapter 532, as enacted on May 15, 1996, which unless restrained will on
July 1, 1996, retroactively unseal the plaintiffs' confidential adoption records
and make these accessible without the need for court approval.
2. This amendment to Tennessee's adoption law mandates
that effective July 1, 1996 "all adoption records, court records, sealed
records, or sealed adoption records, and post-adoption records and other records
or information" which are maintained by the 'Department of Human Services, the
former Department of Public Welfare, the courts, the Department of Health, or
any other information sources"... (dating back to 1951. . - "be made available
to eligible persons as provided" in the Act. (See Section 80(c) of Tennessee
Public Acts of 1996, Chapter 532, [hereinafter the "Act"] a copy of which is
attached hereto as Exhibit A, and incorporated herein by reference).
3. Enforcement of the Act will cause immediate,
irreparable injury to these plaintiffs. Therefore, they seek a temporary
restraining order, as well as permanent injunctive and declaratory relief on the
ground that the Act violates their right of privacy to make personal decisions,
the right of informational privacy, the right of procreational autonomy and the
right of familial privacy, all as guaranteed by the First and Fourteenth
Amendments of the United States Constitution, as well as Article I,§ 1, 3 &
20 and Article XI, § 8 of the Tennessee Constitution.
II. Jurisdiction
4. The jurisdiction of this Court is invoked under 28
U.S.C. § 2201 and 2202, 28 U.S.C.§ 1331 and 1343(3) and (4), and the First and
Fourteenth Amendments to the Constitution of the United States. This action
arises under the Constitution and laws of the United States, including the Civil
Rights Act of 1871, 42 U.S.C.§ 1983 and the Civil Rights Act of 1964.
Plaintiffs' claim arose in this judicial district. Plaintiffs seek injunctive
and declaratory relief under 42 U.S.C,§ 1983.
Parties
Plaintiffs
5. Plaintiff PROMISE DOE (a pseudonym) is a resident of
the Commonwealth of Kentucky and is a birth parent who, because of her sincerely
held religious and conscientious beliefs elected to carry her unborn child to
full term and surrender him for adoption, rather than terminate her pregnancy
through abortion. At the time Plaintiff DOE surrendered her child for adoption
in 1990, she was required under regulations of the State of Tennessee to provide
to SMALL WORLD MINISTRIES, INC. with detailed information of a personal and
private nature about her background and the circumstances surrounding her
decision to surrender her child. Plaintiff DOE was assured at that time that the
information would remain confidential and sealed, and could not be accessed by
her child or her child's father. Plaintiff DOE is concerned about the breach of
her privacy and has suffered emotional distress and the burden of increased
costs directly caused by the Acts provisions. She is proceeding under a
pseudonym because it is essential to her that her identity and her decision to
place her child for adoption remain confidential. Plaintiff DOE sues on behalf
of herself and seeks to represent a class of all women similarly situated.
6. Plaintiff JANE ROE (a pseudonym) is a citizen and
resident of the State of Tennessee, and is the birth parent of an adopted child
born in this State in 1956. At the time plaintiff ROE gave birth to her child
she was seventeen years of age, and was advised that due to her exposure to
German measles during her pregnancy, her child died shortly after it was born.
Some thirty-two years later, the plaintiff was shocked to receive correspondence
from the Department of Human Services of Tennessee requesting her permission to
release identifying information about her to an individual seeking access to
this information. True and correct copies of this correspondence are attached
hereto as Exhibits B and C, with the identifying information redacted. Plaintiff
was later advised that this information was being sought by an individual
asserting that she was his birth mother. After agonizing for some time over this
request, the plaintiff refused to authorize the relay of this information due to
her concern that its disclosure would have a disruptive effect on her family
relationships with her husband and children. If the Act is permitted to take
effect on July 1, 1996, however, the plaintiff will be powerless to prevent the
disclosure of this confidential information to her estranged son.
7. Plaintiffs KIMBERLY C. and RUSS C., are citizens and
residents of the State of Tennessee, and are adoptive parents of two minor
children, James C, age five years, and Zackary C, age fifteen months. At the
time these Plaintiffs adopted their children, they were required under the laws
of the State of Tennessee to provide detailed information of a personal and
private nature to a child-placing agency, and ultimately to the State of
Tennessee, At the time this information was divulged by these plaintiffs, they
were assured that it would remain confidential and free from access by the birth
parents of their adopted son, Given the circumstances of their child's adoption,
the plaintiffs fear that if the information contained in their adoption file and
records is unsealed and accessible by the birth parents of their adopted son,
that their personal lives could be endangered and their relationship with their
son seriously disrupted.
8. Plaintiff SMALL WORLD MINISTRIES, INC. ("SMALL WORLD)
Is a non-profit ministry licensed by the State of Tennessee as a child-placing
agency. SMALL WORLD has its principal office located at 401 Bonnaspring Drive,
Hermitage, Tennessee, with branch offices in Laurel, New Jersey and Bucharest,
Romania, and with staff located in Riga, Latvia; Moscow, Russia/ Tianjan, China;
and Kiev, Ukraine. Under the Act, which will take effect on July 1, 1996, SMALL
WORLD is required to make any files regarding any adoption with which it has
assisted available to the adopted person, if over age twenty-one, and, with the
adopted person's consent to his children's parents, siblings and legal
descendants.
Defendants
9. Defendant DONALD SUNDQUIST is the Governor is the State
of Tennessee. He is the chief executive officer of the State, and he is
constitutionally mandated to insure that the laws of the State, including the
Act, are faithfully executed. Defendant Sundquist is sued in his official
capacity.
10. Defendant CHARLES W. BURSON is the Attorney General of
the State of Tennessee, As such, he is responsible for the enforcement of all
the law of the State, including the Act. Defendant Burson is sued in. his
official capacity.
11. Defendant LINDA RUDOLPH is the Commissioner of the
Department Human Services for the State of Tennessee ('DHS'). As such, she is
responsible for carrying out the provisions of the laws of the State regarding
adoption, including the Act. She is sued in her official capacity,
12. Upon information and belief, unless restrained by
order of this Court, the defendants will perform their official duties to insure
the Act is enforced, and will cause the files of the plaintiffs containing
personal and confidential information surrounding the birth of their children,
and of their decisions to either place their children for adoption, or to adopt
their children, to become open for access by the adopted child, and with his
consent, to his parents, siblings or lineal defendants.
III. Class Action Allegations
13. The plaintiff DOE is a woman who decided that because
of her sincerely held religious and conscientious beliefs she would carry her
unborn child to full term and, rather than terminate her pregnancy by abortion,
to surrender him for adoption. In order to effectuate her decision as a parent
to place her child for adoption, PROMISE DOE was required under DHS regulations
to disclose very private and personal details surrounding the conception and
birth of her child. This information, at the time it was divulged, was required
under state law to remain sealed and protected from later access by her child,
his birth father, the adoptive parents, the child's siblings, and his lineal
descendants. She sues on behalf of herself, and seeks to represent a class
composed of women who placed their children for adoption in the state of
Tennessee and seek, as she does, to preserve the confidentiality of the
documents contained in her adoption file.
14. Plaintiff ROE is presently fifty-seven years of age.
She is married, and has three grown children. In 1956, at age seventeen, she
gave birth to a child who, unbeknown to the plaintiff, was placed for adoption
within the State of Tennessee. Under the adoption laws as they existed in
Tennessee at that time, all records of the adopted child's birth parents were
required to remain sealed. This plaintiff sues on behalf of herself, and seeks
to represent a class composed of women who seek to preserve the confidentiality
of any records relating to their surrender of their children for adoption.
15. Plaintiffs KIMBERLY C. and RUSS C. are adoptive
parents who, during the course of their adoptions, were required under DHS
regulations to provide information of a very personal and private nature to the
child-placing agency regarding their qualifications as putative adopting
parents, and the factual circumstances of their marriage and family
relationships. These plaintiffs were assured at the time this information was
divulged that it would remain sealed and protected from disclosure to the
children they were adopting, as well as the children's parents, siblings and
lineal descendants. They sue on behalf of themselves, and seek to represent a
class composed of individuals who have adopted children in the State of
Tennessee and who desire, as they do, to preserve the confidentiality of the
documents contained in their adoption files.
16. The prerequisites to class certification are met in
that: a. The class of women who have placed their children for adoption in
the State of Tennessee since 1951 (the effective retroactive date in the Act),
and the class of individuals who have adopted children since that date, are so
numerous that joinder of all members is impractical; b. The claims of the
representative parties as to the constitutionality of the Act are typical of
those in the two classes; c. The representative parties have the requisite
personal interest in the outcome of this action and will fairly and adequately
protect the interests of the two classes.
IV. Factual Allegations
17. Women in Tennessee decide to place their children for
adoption for a variety of reasons. Some do so because of their age or for
psychological, emotional, familial or economic reasons. Still others, as in the
case of plaintiffs DOE and ROE, do so, in part, because, due to their religious
or conscientious beliefs, abortion was not an option for them.
18. Since March 16, 1951, women electing to place their
child for adoption in the State of Tennessee, as well as the adopting parents
themselves, have been protected under statutory provisions requiring that all
records generated during the adoption procedure be placed and remain under seal.
Prior to the 1996 amendments, the most recent code section recognizing the
privacy interests of women who place their child for adoption, as well as
adopting parents, was Tenn. Code Ann. § 36-1-126, which provided in relevant
part as follows: Tennessee Public Acts of 1995, Chapter 532.
(a) After the final order of adoption or the final order
dismissing the proceedings, all records and other papers relating to the
proceedings in the office of the clerk, in the office of the department of
health, in the office of a child-placing agency and in the state and county
offices of the department of human services, shall be placed and remain under
seal and shall be opened only by order of the court as provided under§36-1-131,
or as otherwise provided in this part.
Tenn. Code Ann. § 36-1-129, which remained in effect
through December 31, 1995, and Tenn. Code Ann.§68-3-313 also provided that
adoption records must be kept under seal.
19. On July 1, 1996, the following amendment to
Tenne
ssee's adoption law shall take effect
rescinding the protection afforded by the above statutes;
SECTION 80. Tennessee Code Annotated, Section 36-1-127, is
amended by deleting subsections (a), (b) and (c) in their entireties and
substituting instead the following new subsections:
(1)(A) All adoption records, seated records, sealed
adoption records, post-adoption records, or any other records or papers for a
person relating to the adoption or attempted adoption of a person, which
adoption was finalized by the completion of the adoption by the entry of an
order of adoption or an order of dismissal of the adoption proceeding on or
after March 16, 195 1, or which records relate to an adoption or attempted
adoption where the adoption petition was filed on or after March 16, 195 1, or
which was otherwise never completed, due to the abandonment, as determined by
the department on or after March 16, 1951, of any other necessary activity
related to the completion of the adoption, and:
(B) Which records are in the office of the clerk of the
adoption court, in the offices of the Department of Health, in the office of any
child-placing agency, whether or not it is chartered or licensed, in the state,
district, or county offices of the Department of Human Services, or in any other
information source, shall be made available to the following eligible
persons:
(i) An adopted person or a person subject to paragraph (A)
twenty-one (21) years of age or older on whom an adoption record, sealed record,
sealed adoption record, post-adoption record, or other record or paper is
maintained,
(ii) The legal representative of a person described in
item (i).
(C)(i) Information from any records of an adopted person,
or any person otherwise subject to subdivision (A) for whom records are
otherwise maintained, shall be released by, the department or any other
information source only to the parents, siblings, lineal descendants, or lineal
ancestors, of the adopted person or of a person for whom records are maintained
as described in subdivision (A), and only with the express written consent given
to the department by the adopted person or of a person for whom records are
maintained as described in subdivision (A), twenty-one (21) years of age or
older, or such personal legal representative, and, notwithstanding any other of
the following provisions of this part of the contrary, the adopted person or a
person for whom records are maintained as described in subdivision (A), his or
her legal representative shall, under no circumstances, be required to take any
affirmative action pursuant to the contact veto provisions of this act to
protect the confidentiality of such identifying information; provided, however,
nothing herein shall be construed to prevent access to identifying information
in the records of the adopted person as otherwise permitted or required pursuant
to § 36-1-125, 36-1-126 and 36-1-138.
20. The decision of plaintiffs PROMISE DOE and JANE ROE to
carry their children to full term and surrender them for adoption was the single
most difficult decision they ever had to face. The emotional trauma and personal
sacrifice endured by the plaintiff PROMISE DOE during this particularly
vulnerable time in her life was attenuated in part only by the promise as set
forth in the then existing adoption law that the details surrounding her
decision would remain confidential for the rest of her life, and could only be
accessed by court order.
21. In addition, the plaintiffs, KIMBERLY C. and RUSS C.
faced equally difficult decisions in the adoption of their children, and were
required to undergo very thorough investigations into their marriage, family and
personal backgrounds. These plaintiffs also underwent extensive home studies,
psychological evaluations, questions about possible child sexual abuse in their
family history, and other informational inquiries of an extremely private and
personal nature. These plaintiffs were likewise given assurances by the State of
Tennessee that this information would remain sealed and confidential,
22. Under the provisions of the Act, SMALL WORLD and is
now required retroactively to unseal the records of any adoptions processed by
them, and to provide access to any information contained therein upon the
request of any person authorized under the Act.
23. Based on the experience of other jurisdictions which
have enacted open adoption laws unsealing the records of birth parents and
adoptive parents, SMALL WORLD has reason to believe that unless restrained the
Act will have a significant deleterious impact on a woman's decision to place
her child for adoption, Open adoption has resulted in a 51 % decrease in
adoptions in Australia in the last five years since similar legislation took
effect, and a 67% decrease in Great Britain over the last ten years.
V. Causes of Action
First Cause of Action
22. The Act violates the right of privacy as guaranteed by
the Fourteenth Amendment of the United States Constitution.
Second Cause of Action
23. The Act violates the parental rights of the plaintiffs
as guaranteed by the Fourteenth Amendment of the United States Constitution.
Third Cause of Action
24. 'The Act violates the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution.
Fourth Cause of Action
25. The Act unconstitutionally burdens the right of women
to choose adoption for their children in violation of their rights to liberty,
privacy, procreational autonomy and due process of law guaranteed by Article 1,
Sections 1, 3, and 20 and Article XI, Section 8 of the Tennessee
Constitution.
Fifth Cause of Action
26. The Act violates the right to freedom of conscience
guaranteed by Article 1, Section 3 and Article XI, Section 16 of the Tennessee
Constitution.
Sixth Cause of Action
27. The Act deprives women of Equal Protection of the laws
as guaranteed by Article XI, Section 8 of the Tennessee Constitution.
Seventh Cause of Action
28. The Act constitutes a breach by the State of Tennessee
of its contract with the plaintiffs to provide heightened protection of the
confidentiality of the plaintiffs' adoption records.
WHEREFORE PLAINTIFFS PRAY:
1. That this action be filed and served upon the
defendants and that defendants be required to file an answer within the time
prescribed by law; 2. That this Court declare Tenn. Code Ann.§36-1-127(c)
unconstitutional and unenforceable; 3. That the Court enjoin the defendants
from enforcing this statutory provision; 4. That this Court award plaintiffs
attorney's fees and costs pursuant to 42 U.S.C.§1988; and 5. That this Court
issue a temporary restraining order and/or temporary injunction enjoys the
defendants from enforcing Tenn. Code Ann.§ 36-1-127(c) pending a final hearing
in this case; 6. For such other relief as the Court deems fit and
proper.
Dated: June 26, 1996.
THIS IS THE FIRST APPLICATION FOR EXTRAORDINARY RELIEF IN
THIS CAUSE.
Of Counsel:
Jay A. Sekulow, Esq. Chief Counsel American Center
for Law & Justice 1000 Thomas Jefferson St., N.W., Suite
520 Washington, D.C. 20007 (202) 337-2273
Respectfully submitted,
THE AMERICAN CENTER FOR LAW AND JUSTICE
BY: Larry L. Crain, Esq. Tem. Sup. Crt, No.
9040 National Staff Counsel American Center For Law and Justice 101
Westpark Drive, Suite 250 Brentwood, TN 37027 (615) 377-1107
Kevin H. Theriot, Esq. Ten. Sup. Crt.
No.015046 American Center for Law and Justice of Tennessee 101 Westpark
Dr., Suite 250 Brentwood, Tennessee 37027 (615) 377-1107
Attorneys for the Plaintiffs
© 1996 American Adoption Congress
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