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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No. 3:96-0599
JUDGE NIXON
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