(Cite
as: 188 Mich.App. 392, 470 N.W.2d 669)
Court
of Appeals of Michigan.
In
the Matter of the Adoption of Elaine Frances HANSON.
Elaine
Frances HANSON, Petitioner-Appellant,
v.
Jane
DOE, an unidentified biological mother, Respondent-Appellee.
Docket
No. 119366.
Submitted Oct. 16, 1990, at Detroit.
Decided
April 2, 1991, at 9:25 a.m.
Released
for Publication June 21, 1991.
**670
*393
James A. Keedy, Traverse City, for petitioner-appellant.
Janice L. Burns, Detroit, for
biological mother.
Before HOLBROOK, P.J., and CYNAR
and WEAVER, JJ.
PER CURIAM.
Petitioner Elaine F. Hanson appeals
as of right from a July 10, 1989, order of the Wayne County Probate Court
denying her request to make her adoption records available for her inspection.
Petitioner seeks to determine her American Indian ancestry
by means of those records in order to establish tribal membership. We
reverse and remand.
Petitioner was born on March
13, 1960, the *394
illegitimate daughter of a woman of Irish, Dutch, English, and Indian
ancestry. Petitioner was adopted by Geraldine and William
Hanson through the Wayne County Probate Court in 1961. Through
a previous request for information about her biological parents, petitioner
was provided with nonidentifying information, from which she learned she
was part Indian.
Petitioner filed the present
action for disclosure of identifying information, including the names,
birth dates, and birthplaces of her biological parents, or copies of any
birth certificates or death certificates. Because of her Indian
ancestry, petitioner relied on § 107 of the Indian Child Welfare
Act (ICWA), 25 U.S.C. § 1917, in support of her request for
the information. Petitioner alleged that if she could prove that
she is at least one-quarter-blood North American Indian, she would be
entitled to benefits under Michigan's tuition waiver
program, M.C.L. § 390.1251 et
seq.; M.S.A.
§ 15.2114(1) et
seq., as well as be
eligible for other social and economic benefits under federal law. Alternatively,
petitioner argued that federal law, particularly the ICWA, constituted
good cause for release of the information under state law, M.C.L. § 710.67(1);
M.S.A. § 27.3178(555.67)(1).
**671
Following a hearing on the matter, the probate court ruled that the ICWA
did not apply and that petitioner had not demonstrated good cause for
release of the requested information. Accordingly, the petition
was denied.
On information provided by petitioner,
we note that while the present appeal was pending, petitioner was able
to learn the identity of her biological mother and has even met with her.
Petitioner has also obtained a copy of her birth certificate.
Further, petitioner's adoption records reflect that petitioner's
biological mother signed a consent *395
form to release identifying information on November 3, 1989. By
letter dated November 30, 1989, the probate court, provided petitioner
the name, address, and telephone number of her biological mother, her
own name before adoption, and the fact she had no siblings at the time
of adoption. However, petitioner has stated on appeal that
she still lacks official documentation regarding her adoption sufficient
to prove that she is the person on the birth certificate, documentation
which petitioner asserts is necessary in order for her to obtain tribal
membership.
On
these facts, we are not persuaded that this case is now moot. However,
even if this case were moot, we feel that whether and to what extent an
adult adoptee is entitled to access to her adoption records for information
regarding Indian ancestry is an issue of public significance and is likely
to reoccur in the future and still evade judicial review. In
re Forfeiture of $53.00,
178 Mich.App. 480, 485, 444 N.W.2d 182 (1989). Consequently,
we will address the merits of petitioner's appeal.
With
respect to adoptions in which the biological parents' rights were terminated
before September 12, 1980, an adult adoptee may obtain release of all
information relative to a biological parent either by written consent
of that parent or after the death of that parent, M.C.L. § 710.68(5);
M.S.A. § 27.3178(555.68)(5), or "upon order of a
court of record for good cause shown," M.C.L. § 710.67(1);
M.S.A. § 27.3178(555.67)(1). In
re Creed, 126 Mich.App.
32, 337 N.W.2d 41 (1983), appeal after remand 128 Mich.App. 710, 341 N.W.2d
187 (1983); In
re Dixon, 116 Mich.App.
763, 323 N.W.2d 549 (1982); see also In
re Dodge Estate, 162
Mich.App. 573, 584, 413 N.W.2d 449 (1987).
Section
107 of the ICWA, under which petitioner sought access to her adoption
records, states:
*396
Upon application by an Indian individual who has reached the age of eighteen
and who was the subject of an adoptive placement, the court which entered
the final decree shall inform such individual of the tribal affiliation,
if any, of the individual's biological parents and provide such other
information as may be necessary to protect any rights flowing from the
individual's tribal relationship.
That section is limited by 25
U.S.C. § 1923, which provides:
None
of the provisions of this subchapter, except sections 1911(a), 1918, and
1919 of this title, shall affect a proceeding under State law for foster
care placement, termination of parental rights, preadoptive placement,
or adoptive placement which was initiated or completed prior to one hundred
and eighty days after November 8, 1978, but
shall apply to any subsequent proceeding in the same matter
or subsequent proceedings affecting the custody or placement of the same
child. [Emphasis added.]
The trial court summarily concluded
that the present action was not a "subsequent proceeding"
under the statute. We have not been able to locate any other
case, in this or any other jurisdiction, which is directly on point. However,
we believe that an adult adoptee's petition to examine her adoption records
to establish her Indian heritage is both a "subsequent proceeding"
and "a proceeding under State law for foster care placement, termination
of parental rights, preadoptive placement, or adoptive placement."
We note that the Supreme Court
of Alaska in E.A. v.
Alaska, 623 P.2d 1210,
1215 (Alas.1981), interpreted § 1923 in light of its legislative
history which revealed that that section was intended to *397
provide an **672
orderly phasing in of the act's effect by making its provisions inapplicable
to proceedings still pending on the act's effective date. However, § 1923
would apply to any subsequent, discrete phase of the same matter or to
any proceeding involving the same child initiated after enactment. Id.
See also H.R.Rep. No. 1386, 95th Cong. (2d Sess.) pp. 25-26, reprinted
in 1978 U.S.Code Cong. & Admin.News pp. 7530, 7548.
We
find the petition in this case to be just such a "subsequent proceeding"
within the meaning of 25 U.S.C. § 1923. However,
even if we did not, we hold that, in light of the express policy of the
ICWA as set forth in 25 U.S.C. § 1902, "to protect the
best interests of Indian children and to promote the stability and security
of Indian tribes and families" petitioner has demonstrated good cause
as a matter of law for the release of any information regarding her biological
mother which could assist in establishing her tribal affiliation.
Our holding also finds support
in the "Guidelines for State Courts; Indian Child Custody Proceedings,"
issued by the Department of the Interior, Bureau of Indian Affairs, which
provides in pertinent part:
G.2.
Adult Adoptee Rights
(a)
Upon application by an Indian individual who has reached age 18 who was
the subject of an adoptive placement, the court which entered the final
decree must inform such individual of the tribal affiliations, if any
of the individual's
biological parents and provide such other information necessary to protect
any rights flowing from the individual's tribal relationship.
(b)
The section applies regardless of whether or not the original adoption
was subject to the provisions of the Act.
(c)
Where state law prohibits revelation of the *398
identity of the biological parent, assistance of the Bureau of Indian
Affairs shall be sought where necessary to help an adoptee who is eligible
for membership in a tribe establish that right without breaching the confidentiality
of the record. [44 FedReg 67595 (1979).]
However, while we hold that petitioner
is entitled to the release of information regarding her biological mother
in this case, we would also note that in cases in which the biological
parents have not consented the manner in which that information is released
should be tailored to best protect the privacy rights of the biological
parents. Dixon,
supra, 116 Mich.App.
at pp. 768-769, 323 N.W.2d 549. We feel that a procedure similar
to that outlined in 25 U.S.C. § 1951(b) would best effectuate
that purpose, yet still provide the means by which the adult adoptee's
tribal membership can be established. 25 U.S.C. § 1951(b)
provides:
Upon
the request of the adopted Indian child over the age of eighteen, the
adoptive or foster parents of an Indian child, or an Indian tribe, the
Secretary shall disclose such information as may be necessary for the
enrollment
of an Indian child in the tribe in which the child may be eligible for
enrollment or for determining any rights or benefits associated with that
membership. Where
the documents relating to such child contain an affidavit from the biological
parent or parents requesting anonymity, the Secretary shall certify to
the Indian child's tribe, where the information warrants, that the child's
parentage and other circumstances of birth entitle the child to enrollment
under the criteria established by such tribe.
[Emphasis added.]
This procedure is echoed in subsection G.2.(c) of the guidelines
set forth previously.
Consequently,
where the consent of the adult *399
adoptee's living biological parents has not been obtained, the probate
court should release the identifying information to the appropriate tribe,
not the adoptee, with a request that the tribe keep the information confidential.
The court should seek the assistance of the Bureau of Indian
Affairs where necessary to accomplish this. It is the tribe,
not the adoptee, which needs the information to establish tribal membership.
**673
In this case, we reverse the order of the probate court and remand for
a determination whether there is any further information or documentation
regarding petitioner's biological mother which the court could provide
to assist her in establishing tribal membership. We do not
retain jurisdiction.
188 Mich.App. 392, 470 N.W.2d
669
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