25.0297.01000
Sixty-ninth
Legislative Assembly
of North Dakota
Introduced by
Senators Hogan, Weber, Van Oosting
Representatives Dobervich, McLeod, S. Olson
A BILL for an Act to amend and reenact sections 14-15-16 and 23-02.1-18 of the North Dakota
Century Code, relating to disclosure of information in adoption proceedings and access to birth
records.
BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
SECTION 1. AMENDMENT. Section 14-15-16 of the North Dakota Century Code is
amended and reenacted as follows:
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, "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.
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SENATE BILL NO. 2284
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3.All hearingsA hearing held in actionsan action under this chapter must be held in
closed court without admittance of any individual other than an essential officersofficer
of the court, the partiesa party, their witnessesa witness, counsel, individualsan
individual who havehas not previously consented to the adoption but areis required to
consent, the parentsa parent of an adult to be adopted, and representatives of the
agenciesan agency representative present to perform their official duties. Upon a
showing of good cause by the petitioner, the court may prohibit the parentsa parent 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
furnishedprovided at a reasonable fee to:
a.The adoptive parentsAn adoptive parent 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 furnishprovide a certified copy of the decree of adoption to the adoptive parents,
the:
a.Adoptive parent or 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; and
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b.Adopted adult, including disclosure of the identity of the genetic parents and the
name of the adopted adult before the adoption action if such identifying
information is included in the decree of adoption.
7.Before the child reaches adulthood, at the discretion of the child-placing agency, and
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
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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 workingseven days ofafter 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 workingseven days after receipt of thea request, shall so notify the
requester in writing. The requester may designate a child-placing agency from a list of
such agencies furnishedprovided 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:
a.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 certifysecure and compile the requested information;
b.Certify the results of its efforts to the department within one hundred twenty days
after receipt of the request; and
c.If applicable, include in the certification a statement of whether an adopted
individual or a genetic sibling knows the identity of a living mutual genetic parent
in accordance with subsection 17 .
16.The child-placing agency may charge a reasonable fee to the requester for the cost of
making a search pursuant to thea 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.
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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
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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.
21.17.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 partiesthat
information must be disclosed in accordance with subsection 15 .
22.18.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.
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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.c.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.d.The department or agency may charge a reasonable fee.
23.19.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 2420.
24.20.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 forbiddenprohibited under this section, that
the petitioner has a significant need for the disclosure, and the nature of that
need.
b.The petition shallmust name the department and any child-placing agency that
has received a request under subsection 8, 9, 10, 11, 12, or 13 as respondents.
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c.The respondents must furnishprovide, 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 furnishedprovided notice of the proceeding and
may require that the respondents give notice to those individuals. If those
personsindividuals participate in the proceeding theythe individuals must be
permittedallowed 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.
25.21.The provisions of this section governing the release of identifying and nonidentifying
adoptive information apply to adoptionsan adoption completed before and after July 1,
1979.
26.22.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.
27.23.The department shall make such reasonableadopt rules as are necessary to carry out
the purposes of this section.
SECTION 2. AMENDMENT. Section 23-02.1-18 of the North Dakota Century Code is
amended and reenacted as follows:
23-02.1-18. New birth records following adoption, legitimation, and paternity
determination.
1.The state registrar shall establish a new birth record for a personan individual born in
this state when the registrar receives the following:
a.An adoption report as provided in section 23-02.1-17 or a certified copy of the
decree of adoption together with the information necessary to identify the original
birth record and to establish a new birth record; except that a new birth record
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may not be established if so requested by the court decreeing the adoption, the
adoptive parents, or the adoptive person.
b.A request that a new record be established and such evidence as required by
rules and regulations proving that such personindividual has been legitimated or
that a court of competent jurisdiction has determined the paternity of such
personindividual.
2.For a personan individual born in a foreign country whose adoptive parents are
residents of the state of North Dakota at the time of the adoption, the state registrar
shall prepare a new birth record:
a.In the case of a foreign-born personindividual adopted in North Dakota, upon
presentation of a report of adoption as required by section 23-02.1-17.
b.In the case of a foreign-born personindividual adopted outside the state of North
Dakota or outside the United States, or in the state of North Dakota prior to
July 1, 1979, upon presentation of a certified copy of the adoption decree, and:
(1)A certified copy of the birth record of the adopted personindividual; or
(2)An affidavit of an adoptive parent setting forth the true or probable date and
place of birth and parentage of the adopted personindividual.
Any certification of a birth record issued under this subsection must be in the same
form as other certifications of birth records issued in this state except that it must state
that it does not purport to be evidence of United States citizenship.
3.When a new birth record is established, the actual place and date of birth must be
shown. The new birth record must be substituted for the original birth record:
a.Thereafter, the original birth record and the evidence of adoption, paternity, or
legitimation is not subject to inspection except upon order:
(1)Request of the adopted individual who is eighteen years of age or older, the
state registrar shall provide to the adopted individual a copy of the
individual's original birth record and any evidence of adoption previously
filed with the state registrar; or
(2)Order of a court of competent jurisdiction or as provided by rules and
regulations.
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b.Upon receipt of a notice of annulment of adoption, the original birth record must
be restored to its place in the files and the new birth record and evidence is not
subject to inspection except upon order:
(1)Request of the adopted individual who is eighteen years of age or older, the
state registrar shall provide to the adopted individual a copy of the new birth
record and any evidence of adoption previously filed with the state registrar;
or
(2)Order of a court of competent jurisdiction.
4.If no birth record is on file for the personindividual for whom a new birth record is to be
established under this section, an original birth record must be filed with the state
registrar in accordance with the appropriate rules and regulations promulgatedadopted
by the department of health and human services. The new record is also to be
prepared on the standard forms in use at the time of the adoption, legitimation, or
paternity determination.
5.When a new birth record is established by the state registrar, all copies of the original
birth record in the custody of any custodian of permanent local records in the state
must be sealed from inspection or forwarded to the state registrar, as the registrar
directs.
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