14-15-16. Hearings and records in adoption proceedings - Confidential nature -
Disclosure of identifying and nonidentifying information - Retroactive operation.
1. The provisions of this section supersede any other law regarding public hearings and
records.
2. For purposes of this section:
a. "Genetic parent" includes a man presumed or adjudicated to be the adopted
individual's father under chapter 14-20 and an alleged father when so indicated in
the files of the child-placing agency or the department, but only if there exists in
those files information that corroborates the allegation of paternity, including the
existence of communications between the alleged father and the child-placing
agency, or between the alleged father and the genetic mother or members of her
family, or such other corroborative information as may be permitted by rules
adopted by the department.
b. "Notify" means to make a personal and confidential contact with the individual to
whom a disclosure of identifying information has been requested. The personal
and confidential contact must be made by an employee or agent of the
child-placing agency that processed the adoption or by some other licensed
child-placing agency designated by the individual initiating the search.
3. All hearings held in actions under this chapter must be held in closed court without
admittance of any individual other than essential officers of the court, the parties, their
witnesses, counsel, individuals who have not previously consented to the adoption but
are required to consent, the parents of an adult to be adopted, and representatives of
the agencies present to perform their official duties. Upon a showing of good cause by
the petitioner, the court may prohibit the parents of an adult to be adopted from
attending the adoption hearings and proceedings. A parent of an adult to be adopted
who is prohibited by the court from attending the proceedings may submit relevant
testimony or information regarding the petition to the court in writing.
4. All papers; records; and identifying and nonidentifying information relating to an
adopted individual, birth siblings, birth parents, or adoptive parents, whether part of the
permanent record of the court or of a file in the department or in an agency are
confidential and may be disclosed only in accordance with this section. Papers,
records, and information directly pertaining to the adoption must be kept permanently
by the department and agency.
5. Nonidentifying information, if known, concerning undisclosed genetic parents must be
furnished at a reasonable fee to:
a. The adoptive parents at the time of adoptive placement or upon their written
request;
b. An adopted adult upon written request; or
c. A birth parent upon written request.
6. The clerk of the appropriate district court, upon request and payment of the proper fee,
shall furnish a certified copy of the decree of adoption to the adoptive parents, the
guardian of an adopted minor child, or an adopted adult, provided the decree does not
disclose the identity of the genetic parents or the name of the adopted individual
before the adoption action.
7. Before the child reaches adulthood, at the discretion of the child-placing agency, with
due regard for confidentiality exchanges of identifying or nonidentifying information
may take place between the genetic parents, adoptive parents, and adopted child.
a. Disclosure of a party's identifying information may not occur unless the party
consents to disclosure.
b. If one parent objects, the identifying information disclosed by the agency may
only relate to the consenting parent or parents.
8. An adopted individual who is eighteen years of age or older may request the
department to initiate the disclosure of information identifying the adopted individual's
genetic parents or to initiate the disclosure of nonidentifying information not on file with
the department or a child-placing agency.
9. An adopted individual who is eighteen years of age or older may request the
department to initiate the disclosure of information identifying the adopted individual's
adult genetic sibling.
10. A genetic parent of an adopted individual, after that individual has reached twenty-one
years of age, may request the department to initiate the disclosure of information
identifying that individual or to initiate the disclosure of nonidentifying information not
on file with the department or a child-placing agency.
11. An adult genetic sibling of an adopted individual, after that individual has reached
twenty-one years of age, may request the department to initiate disclosure of
information identifying that individual.
12. An adult child of a deceased adopted individual may request the department to initiate
the disclosure of information identifying the adopted individual's genetic parents or to
initiate the disclosure of nonidentifying information not on file with the department or
child-placing agency.
13. An adult child of an adopted individual who is still living may not request the
department to initiate disclosure of information identifying the adopted individual's
genetic parents or to initiate the disclosure of nonidentifying information not on file with
the department or child-placing agency.
14. The department shall, within five working days of receipt of a request under subsection
8, 9, 10, 11, 12, or 13, notify in writing a child-placing agency having access to the
requested information. If the department's records do not identify any child-placing
agency having access to the requested information, the department, within five
working days after receipt of the request, shall so notify the requester in writing. The
requester may designate a child-placing agency from a list of such agencies furnished
by the department, ask the department to designate an agency, or terminate the
request.
15. Within ninety days after receiving notice of a request made under subsection 8, 9, 10,
11, 12, or 13, the child-placing agency shall make complete and reasonable efforts to
notify the individual or individuals with respect to which a disclosure of identifying
information has been requested. The child-placing agency must certify the results of its
efforts to the department within one hundred twenty days after receipt of the request.
The child-placing agency may charge a reasonable fee to the requester for the cost of
making a search pursuant to the request. All communications under this subsection
are confidential. If the search is not completed within ninety days, additional time may
be requested. Approval of this request must be given by the individual requesting the
search.
16. The personal and confidential contact must be evidenced by an affidavit of notification
executed by the individual who notified each genetic parent, adopted individual, or
genetic sibling and certifying that each genetic parent, adopted individual, or genetic
sibling contacted was given the following information:
a. The nature of the identifying information to which the agency has access.
b. The nature of any nonidentifying information requested.
c. The date of the request of the adopted individual, genetic parent, or genetic
sibling.
d. The right of the genetic parent, adopted individual, or genetic sibling to file,
authorize disclosure or refuse to authorize disclosure.
e. The effect of a failure of the genetic parent, adopted individual, or genetic sibling
to either authorize disclosure or refuse to authorize disclosure.
17. An adopted individual, genetic parent, or genetic sibling, with respect to whom a
disclosure of identifying information has been requested, may authorize disclosure,
refuse to authorize disclosure, or take no action. If no action is taken in response to a
request, the child-placing agency must treat that as a refusal to authorize disclosure,
except that it does not preclude disclosure after the individual's death.
18. If the child-placing agency has been able to locate only one genetic parent who
authorizes disclosure and the other genetic parent cannot be located, the identifying
information must be disclosed to the adopted individual. The information disclosed by
the agency may relate only to the consenting parent.
19. If the child-placing agency has located both genetic parents and only one genetic
parent authorizes disclosure, the child-placing agency may not disclose identifying
information regarding the consenting parties unless there is a court order authorizing
the disclosure. Upon application to the court by the child-placing agency, the court
shall issue an order authorizing disclosure of information identifying the consenting
parties. The order must include any conditions the court determines sufficient to
reasonably ensure the continued nondisclosure of information identifying the objecting
genetic parent. Conditions placed on the disclosure may include a sworn statement by
the consenting genetic parent to refrain from disclosing to the adopted individual any
information identifying the objecting genetic parent.
20. The certification of the child-placing agency to the department must include:
a. A statement of whether it has been able to notify the individual about whom a
disclosure of identifying information was requested and whether a notification was
precluded by the death of the individual.
b. If a genetic sibling was to be notified at the request of an adopted individual, or if
an adopted individual was to be notified at the request of a genetic sibling, a
statement of whether either individual knows the identity of any mutual genetic
parent.
c. Assurances that:
(1) No disclosure of identifying information has been made with respect to any
adopted individual, genetic parent, or genetic sibling who has not authorized
the disclosure in writing unless the child-placing agency has verified that the
individual has died leaving no unrevoked written refusal to authorize
disclosure.
(2) Any disclosure of identifying information that might lawfully be made under
this section was made within ten days after the date of receipt of written
authorization or the date on which the agency verified that the individual had
died.
d. Copies of any written authorization of disclosure or refusal to authorize
disclosure.
e. A statement that the individual about whom disclosure of identifying information
was requested has neither authorized nor refused to authorize disclosure at the
time of the certification.
f. The date of each notification.
g. A copy of each affidavit of notification.
21. The child-placing agency, acting on the request of an adopted individual to disclose
identifying information about a genetic sibling, or acting on the request of a genetic
sibling to disclose identifying information about an adopted individual, must determine
if either individual knows the identity of a living mutual genetic parent. If either
individual knows the identity of a living mutual genetic parent, no disclosure may be
made unless that parent is first notified, in the manner provided for in subsection 13.
The identifying information released may only relate to the consenting parties.
22. Upon application to the department by an adult adopted individual or the parent or
guardian of a minor adopted child, the department may investigate or cause to be
investigated facts necessary to determine the adopted individual's eligibility for
enrollment as a member of an Indian tribe.
a. The department may inquire of any individual or agency, including a licensed
child-placing agency in North Dakota, to assist in the investigation.
b. All identifying information obtained by the department shall remain confidential.
c. The bureau of Indian affairs or an Indian tribe may be provided sufficient
information obtained from the investigation to determine the eligibility of the
adopted individual for enrollment in an Indian tribe. Before the department's
release of information to the bureau of Indian affairs or an Indian tribe, the
department shall request written assurance from the bureau of Indian affairs or an
Indian tribe that the information provided will remain confidential and will not be
furnished to any unauthorized individual or agency.
d. The procedure used in contacting the genetic parents of the adopted child must
be a personal and confidential contact. Any necessary contact must be made by
an employee or agent of a licensed child-placing agency or the department. The
information requested of the genetic parents must be limited to that information
necessary to make a determination of the adopted individual's eligibility for
enrollment in an Indian tribe.
e. The department or agency may charge a reasonable fee.
23. An individual may not be required to disclose the name or identity of either an adoptive
parent or an adopted individual except:
a. In accordance with this section;
b. As authorized in writing by the adoptive parent or the adopted individual; or
c. Upon order of the court entered in a proceeding brought under subsection 24.
24. An adopted individual, a genetic parent, a genetic sibling, or a guardian of any of those
individuals may petition the district court for an order directing the disclosure of
identifying information.
a. The petitioner shall state that efforts to secure the requested disclosure have
been made under this section or are forbidden under this section, that the
petitioner has a significant need for the disclosure, and the nature of that need.
b. The petition shall name the department and any child-placing agency that has
received a request under subsection 8, 9, 10, 11, 12, or 13 as respondents.
c. The respondents must furnish, to the court, for in camera review, copies of such
records as the respondents may possess that contain requested identifying
information.
d. The court may determine if individuals about whom the disclosure of identifying
information is requested must be furnished notice of the proceeding and may
require that the respondents give notice to those individuals. If those persons
participate in the proceeding they must be permitted to do so in a manner, to be
determined by the court, which avoids disclosure of identifying information except
when disclosure is ordered by the court.
e. The court may order disclosure only if the petitioner demonstrates that disclosure
will not result in any substantial harm to the individual about whom identifying
information is sought. The court may not order the disclosure of identifying
information concerning any individual who objects to that disclosure.
25. The provisions of this section governing the release of identifying and nonidentifying
adoptive information apply to adoptions completed before and after July 1, 1979.
26. Any child-placing agency discharging in good faith its responsibilities under this
section is immune from any liability, civil or criminal, that otherwise might result.
27. The department shall make such reasonable rules as are necessary to carry out the
purposes of this section.
