In Re ADOPTION OF SCOTT W.V.

MEREDITH, J. Scott W.V., appellant, was adopted as an infant in 1958. His adoptive parents are now deceased. Appellant has long been interested in learning whatever information he can about his birth parents, and has been able to access redacted portions of his adoption case file. The process has stalled, however.

This appeal addresses the denial of appellant’s request to access any of the information about his birth father that was redacted from the original adoption case file. The Circuit Court for Montgomery County denied appellant’s motion, and stated that “[t]here is no further information for the Court to release to the [appellant] as there is no non-identifying information to which the [appellant] is entitled pursuant to Family Law Article §§ 5-3A-40 and 41.” 1 ⁴³⁰ Appellant contends on appeal that the circuit court’s denial of his motion was both an error of law and an abuse of discretion because, he argues, the information he seeks— which was used by an intermediary and a professional investigator in a fruitless but “exhaustive” attempt to locate his birth father—is necessarily non-identifying information, and, under FL § 5-3A-40, he is entitled to all non-identifying information without a showing of need. No other party has filed a brief in this appeal. QUESTIONS PRESENTED Appellant presents two questions for our review: 1.

Whether the trial court’s denial of appellant’s unopposed motion requesting additional information about his birth father was erroneous as a matter of law because it incorrectly interpreted the category of “identifying information” defined at Annotated Code of Maryland, Family Law Article, § 5-3A-01(d) to include information that revealed neither his birth father’s identity nor location? 2. Whether the trial court’s denial of appellant’s unopposed motion requesting additional information about his birth father was an abuse of discretion in failing to recognize that the special and compelling reasons presented by appellant’s motion outweigh the interests of the birth parents and to issue written findings as to the interests sought to be protected by the order? For the reasons that follow, we will remand this case, without affirmance or reversal, to the Circuit Court for Montgomery County for further proceedings in accordance with this opinion. ⁴³¹ FACTS AND PROCEDURAL HISTORY Appellant was born at the Florence Crittenton Maternity Home in Washington, D.C., on May 1, 1958. His natural mother was an unmarried 33-year-old secretary who had concealed her pregnancy from her parents, quit her job "with the federal government, and entered a maternity home sometime after Christmas in 1957.

According to the 1958 Report of Adoption Investigation, appellant’s mother was “anxious that no hint of the pregnancy become known to [her] parents, who are very substantial, conservative people, as she knew they would be very hurt.” For the first thirteen days after appellant’s birth, he was cared for in the maternity home by his birth mother. He was then placed in the care of an adoption agency on May 14, 1958. The agency’s (heavily redacted) records indicate that appellant was placed with his adoptive family on June 11, 1958, and that his adoption was finalized on December 22,1958. The record of the circuit court proceedings in this case reveals that, in 2002, appellant contacted the Montgomery County Department of Health and Human Services “to learn about his adoption and birth history.” Helen Clark, an adoption social worker with the Department, acted as an intermediary, and reviewed appellant’s sealed adoption records.

Ms. Clark wrote appellant a letter on May 23, 2002, summarizing the non-identifying information she had learned about the circumstances of his birth and adoption. Ms. Clark’s letter stated: Your birth mother was described as being healthy, exceptionally tall and slender. She was thirty-three years of age when she gave birth to you. At that time, she had no other children.

She was one of two children, with a younger brother who was aware of her pregnancy. Your birth mother was very dependent upon her parents and she found it difficult to break away from home because she believed her mother would be depressed at the prospect of both of her children being away from her. They were unaware of her pregnancy. ⁴³² Your birth mother completed two years of college and worked as a secretary. The record indicated that your birth parents knew each other very briefly and that your birth father was your birth mother’s first sexual experience.

After your birth, your birth mother gave you personal care during the thirteen days you were together in a maternity home. She was pleased to know something of your adoptive parents and expressed satisfaction with the adoption plan. The record also indicated that whenever your birth mother returned to her family she wrote two or three letters and sent a card while on a trip. However, it is unclear from the record as to whom the letters and card were addressed or sent.

The items were not in the record. There is very little information in your record regarding your birth father. Nothing was known regarding his health. He was a college graduate and employed as an architectural engineer.

His age was not provided. At birth, you weighed six pounds, fourteen ounces and were nineteen inches long. You were born at 1:41 p.m. Forceps were used, causing a right occipital hematoma that completely disappeared within a few weeks.

No birth father is listed on your original birth certificate. You were placed into foster care on May 14, 1958, and placed with your adopt[ive] family on June 11,1958. I hope this information is helpful. (Emphasis added.) On July 20, 2009, appellant filed a Verified Motion to Unseal Adoption Records and Petition for Inspection of Non-Identifying Information and Appointment of an Intermediary, along with a request for hearing.

Appellant represented that he was seeking “access to his adoption records to the greatest extent permitted by law” and “the opportunity to inspect his sealed adoption records firsthand, to the greatest extent possible in view of the confidentiality laws protecting the privacy wishes and identifying information of his birth mother.” (Emphasis in original.) In the motion, appellant cited FL § 5-3A-40(a)(2) in support of his argument that, as an ⁴³³ adoptee, he was entitled to the release of non-identifying information from his adoption case file without a showing of need. In addition, appellant asserted that he had a variety of “special and compelling reasons” that entitled him to access to “as much information as is possible under Md. R. 16—1009[.]” 2 Appellant pointed to the fact that his then-11-year-old son was of abnormally short stature, and family health information “would allow [appellant] and his wife to make an informed decision regarding treatment for their son’s abnormal growth rate and consider the usefulness of endocrine treatment,” which was of a time-sensitive nature. Appellant’s motion was denied without a hearing, as was his motion for reconsideration. Appellant appealed to this Court, but, before this Court could consider the merits of that appeal, the parties filed a consent motion to remand, which we granted via order of December 2, 2010.

See Scott W.V.[] v. Montgomery County Department of Health and Human Services, No. 0034, September Term, 2010, order entered December 2, 2010. We ordered the Circuit Court for Montgomery County to enter orders directing the custodian of the appellant’s adoption case record to permit the appellant to personally inspect and copy the index of the adoption case record, if there is an index that is kept apart from the docket itself, and provided that all identifying information is redacted from the index prior to inspection; and ... [to] permit the appellant, pursuant to Md.Code Ann., Family Law § 5-3A-40(a)(2)(b), to personally inspect and copy the non-identifying information contained in the record, provided that all identifying information is redacted prior to inspection; and ... [to] ⁴³⁴ schedule a full adversary hearing on the appellant’s motion under Md. R. 16-1009 concerning access to the parts of the case record not otherwise subject to inspection; and ... [to] schedule] a hearing on appellant’s request for the appointment of an intermediary to contact his birth father to obtain urgently needed medical information, pursuant to Family Law § 5-3A-41. Upon remand, a guardian ad litem was appointed for the birth mother, and a confidential intermediary was appointed to attempt to contact appellant’s birth mother. In the order appointing the confidential intermediary, the court directed the intermediary to attempt to ask the birth mother certain questions embodied in a three-page attachment to the order.

On September 27, 2011, the intermediary was able to converse with appellant’s birth mother via telephone. According to the intermediary’s confidential memorandum of that phone call, the birth mother was “cooperative,” but also “very firm and adamant that she will not respond to the list of questions that was attached to the order.” The birth mother also told the intermediary that she “did not recall the height of the birth father, and only knew his first name.” It was the opinion of the intermediary that, based on the “very limited information from the birth mother, as well as information from the court’s adoption record,” the intermediary “did not, and does not currently, have sufficient information to identify, locate and contact the birth father, or determine if he is deceased.” On April 12, 2012, the court entered an order appointing a guardian ad litem for the birth father, specifying that “the overriding interest” of the guardian “shall be to protect [the birth father’s] privacy rightsf.]” The order gave the birth father’s guardian ad litem access to appellant’s unredacted adoption case file. It also recognized that the parties had recently discovered the name of the private adoption agency that handled (or was the successor to the entity that in 1958 had handled) appellant’s adoption, and the order directed that agency, upon appellant’s request, to redact its records pertaining to appellant’s adoption and to provide the redacted records to the guardians ad litem. The order further directed the ⁴³⁵ guardians ad litem to review the redacted records and notify the court whether they approved the release of the redacted records to appellant.

Pursuant to FL § 5-3A-41, the April 12, 2012, order also appointed an intermediary, Bethany Stahl, who was a licensed graduate social worker, “to perform a diligent search to identify, locate and try to contact the birth father to obtain urgently needed medical information ... that would be likely to assist [appellant’s] family in making an informed decision about treatment” of their son’s growth issues. The intermediary was granted full access to the unredacted adoption case record. The order provided that, “[a]t [appellant’s] expense, and at the intermediary’s discretion, the intermediary may engage a private investigator or other search and trace services to assist in locating the birth father using the identifying information contained in the court and agency records, taking care that no identifying information is released to the [appellant][.]” The April 12 order also included the following provision which contemplated the release of additional information to appellant: [It is further ordered] that, if the identity and location of the birth father is still unknown to the intermediary to the birth father after an exhaustive search is made by her or at her direction, the Court shall consider the release to [appellant] of additional information about the birth father from the Court’s sealed adoption case record and the private adoption agency’s record (subject to the review and recommendations of the Guardian Ad Litem appointed to represent each birth parent) on the basis that this information would be by definition non-identifying information to which [appellant] is entitled under law[.] (Emphasis added.) As ordered, the court-appointed intermediary commenced a search for appellant’s birth father, and enlisted the help of a private investigator. On October 10, 2013, the intermediary filed a summary of her investigation, along with a summary of ⁴³⁶ the efforts made by the private investigator.

In her summary, the intermediary mentioned having shared the original adoption record with the private investigator, “[although there was less information in the file than we believed there would be[.]” Despite the paucity of information, the intermediary and the investigator spent over a year attempting to identify appellant’s birth father, but, in the end, their efforts were unsuccessful. The intermediary stated: “I have been unable to reach out to the birth father, because we were unable to identify him based on the little information we had been provided.” The intermediary’s summary concluded: Mr. Pennacchia [the private investigator] also attempted to search for professional or educational societies that the alleged birth father could have belonged to, and also for women who may have been in the same maternity home as the birth mother, and thus may have known her. After those attempts were inconclusive, Mr. Pennacchia and I concluded that there is not enough information in the file we received from the original agency to identify the actual birth father. The information about the birth father is sparse, and Mr. Pennacchia and I are doubtful as to the veracity of the little information that is provided.

For instance, no one at the agency ever met the alleged birth father, so they relied solely on self-report from the birth mother for information about him. [ONE SENTENCE REDACTED] As a licensed social worker working in the field of adoption, my clinical judgment causes me to be skeptical of this scenario. I have worked with a number of women who have given false information about birth fathers at the time of placement. At times, they have done this to protect themselves or the birth fathers; and at other times because it is easier than telling a difficult truth. (Emphasis added.) The private investigator, Mr. Pennacchia, was able to use the bits and pieces of information in the original adoption record to locate and contact the birth mother’s brother, but the trail to appellant’s birth father went cold, and the mother’s ⁴³⁷ brother adamantly refused to provide any further information.

Mr. Pennacchia summarized: I read and re-read the information contained in the original documents from the Adoption Agency. I found much of it to be imaginary, embellished, and unreliable. [ONE SENTENCE REDACTED] She knew that the man was Protestant, the University he graduated from, the city he worked in. I tend to believe in what has not been written. The Mexico trip with the girlfriend, most likely an alibi to protect someone else.

If the birth mother undertook the trip with a male colleague from her DC job, would this not throw us off track? With this in mind, I pointed my attention to the birth mother’s brother. According to the original reports, he was the person closest and most dedicated to her during the rough times. [TWO SENTENCES REDACTED] I wrote him a letter date[d] Aug. 30, 2012, via FedEx overnight (copy attached). I waited approximately ten days, received no reply[.] I telephoned Mr. [REDACTED].

I mentioned the letter, he acknowledged receiving it. I was surprised and stunned by his hostility and anger. He requested that I never contact him again, that he thought this person (his nephew [ie., appellant]) was “barking up the wrong tree”, that so much time had gone by, that we must leave he and his sister in peace and [he] terminated the contact. I concluded that the information we seek may remain with the mother and uncle.

After a hearing on January 13, 2014, the guardians ad litem, reviewed the summary reports of the intermediary and the investigator referenced above, and agreed on redactions that needed to be made to those documents to remove identifying information. The circuit court reviewed the reports and made additional redactions. On January 28, 2014, the parties reconvened for a brief hearing, after which the redacted documents were released to appellant’s counsel. The following colloquy, which is relevant to the issues presented in the instant appeal, occurred after the court ruled that appellant was entitled to the redacted reports of the intermediary and the investigator: ⁴³⁸ [BY THE COURT]: I’m not entirely sure that there is anything else for the Court to do from here, that is to say that perhaps the Court’s role in this process is completed at this point. [BY APPELLANT’S COUNSEL]: Your Honor?

First of all, just to clarify, my assumption is that the intermediary was not able to identify, locate, and contact the birth father? A [BY THE COURT], That’s correct. Q [BY APPELLANT’S COUNSEL], Okay. A [BY THE COURT].

The letter will tell you that, but that is correct. Q [BY APPELLANT’S COUNSEL]. Okay. And I’m pleasantly surprised to hear that the investigator made an effort to contact I guess the mother’s brother, which I think we have some—that’s not new to me that there was a brother out there.

I don’t know who he is, but I heard that at some point. So that’s encouraging at least that he took certain steps. A [BY THE COURT]. Right.

And I mean, the documents will tell you that those efforts were complete, let’s just say. Q [BY APPELLANT’S COUNSEL], When you say complete, have you determined— A [BY THE COURT], You’ll be able to tell from the letter that the investigator reached the brother. Q [BY APPELLANT’S COUNSEL]. Okay.

Okay. And, Your Honor, have you decided if you consider the search to have been exhaustive? A [BY THE COURT], Yes, I have. I do believe it is.

I believe that’s what you’ll also get from the letter that the investigator and the intermediary, each of their letters I guess is what I mean—will be, I think it’s clear—that they both believe they’ve gone as far as one can expect to go under these circumstances. I mean, one of the things that’s true here is that [appellant] is roughly my age. So these people are elderly. So other people who might be in the ⁴³⁹ picture would also be elderly, well over 80 years old.

And so they may not be alive is my point. ■Q [BY APPELLANT’S COUNSEL]. I guess—we wanted to know if—it sounds like the answer is yes—but just to clarify here that the search was exhaustive, because all sorts of reasonable leads were followed, as opposed to if the search had been done differently or better or something like that—you feel like an exhaustive search has been made? A [BY THE COURT]. Yes, I do.

Q [BY APPELLANT’S COUNSEL], Okay. A [BY THE COURT], And largely for the reason I just articulated, that it’s hard to follow this kind of a trail at this point, 50 years hence, with people who are—well, I don’t think it’s anything that’s not in the letter—unwilling to cooperate further. So there’s no way to get more information from them. And I, frankly, think that the kind of commitment that we make in these cases about anonymity in these kinds of adoptions has also to be balanced here.

And I don’t think there’s any way to go further. Q [BY APPELLANT’S COUNSEL], Okay. A [BY THE COURT]. Any way that would be in the— let’s say would be compliant with what the statute says about where this trail has to end once we’ve done everything that we can.

And I believe everything that can be done has been done. [¶]... ] —I will say I think the trail has been exhausted. And there’s nothing that I can see the Court doing further here. [¶]... ] I’m trying to help you understand that, while I recognize that this result may be a disappointment in some ways, because the answer didn’t get reached, I see no other ⁴⁴⁰ avenue to take and no other information in any part of the court file that would assist. (Emphasis added.) Three months later, on April 29, 2014, appellant filed a Motion to Release Limited Additional Information, the denial of which led to this appeal. In that motion, appellant cited the provision of the April 12, 2012, order that referred to considering the release of additional information, and appellant argued that, because a diligent and exhaustive search for appellant’s birth father undertaken by professionals using the unredacted adoption record proved fruitless, then, by definition, the information in the unredacted record about the birth father was “non-identifying,” and therefore, appellant was entitled to see it.

In his motion, appellant specifically requested a “fresh review” of certain redactions which, he asserted, appear to pertain only to his birth father. These redactions related to the birth father’s first name, the university he attended, the name of his employer, race or color, and any background history that might have been provided in the adoption agency’s 1958 investigation leading up to appellant’s adoption. The specific information that had been previously redacted and withheld from appellant, which he now asked the court to release pursuant to FL § 5-3A-40 as “non-identifying” in light of the fact that a professional investigator with access to that information was unable to identify the birth father, was as follows: Given the search history, revelation to the petitioner of the following few redactions pertaining only to his birth father should neither impinge on either of his birth parents’ privacy interest nor lead to their identity or location: a. In the Court’s own records: i.

On page 7 of the Report of Adoption Investigation dated December 12, 1958, the entry concealed by the black marker redaction of the response to the prompt calling for the first name of “Child’s father.” A copy of the page is attached as Exhibit A. ⁴⁴¹ 2. On page 8 of the same Report of Adoption Investigation, which is a continuation of the section begun on the prior page titled “Circumstances in child’s own family that have bearing on his being available for adoption,” specifically in the third full paragraph on page 8, the redactions concealing what appears to petitioner’s birth father’s school and California employer. A copy of page 8 is attached as Exhibit B. In light of the previously mentioned idea that there may be a correlation between petitioner’s chosen profession and that of his birth father, any information about where his birth father was educated or worked might help to corroborate this interesting familial similarity, b. In the agency records: i.

In the Report of Adoption Investigation dated August 1, 1958, on page 7, the black marker redactions covering the name, birthdate and birthplace section concerning “Child’s Father”, as well as the sections, going on to the following pages 8 and the very top blacked out line of page 9, titled “Circumstances in child’s own family that have bearing on his being available for adoption” and “Physical history of child’s own family.” A copy of the pages are attached as Exhibit C. Petitioner is in no position to gauge whether there is any material in the original, unredacted version of those sections that might pertain to his birth father, but if there is, petitioner asks the Court here to consider this also as a request for the disclosure of such information