Bradey v. Children's Bureau of South Carolina, (Spartanburg
County, S.C., Ct. C.P., Apr. 9, 1979),
rev'd, 275 S.C. 622, 274 S.E.2d 418 (1981).
STATE OF SOUTH CAROLINA
IN THE COURT OF COMMON PLEAS
COUNTY OF SPARTANBURG
Max Bradey,
Petitioner
-vs-
ORDER
The Children’s Bureau of
South Carolina,
Respondent.
Petitioner, who now resides with his family, at Oxnard, California, was born in
South Carolina on February 6, 1947. Thereafter, his natural mother placed
him for adoption with The Children’s Bureau of South Carolina.
With the approval of the
Bureau, he was adopted on August 19, 1948, by Herbert W. Bradey and his wife of
Landrum, South Carolina. He was reared by the Bradeys who had no other
children. Herbert Bradey is now deceased and the adoptive mother makes her
home with her son, the Petitioner.
The testimony shows that
Petitioner for a number of year
[sic] has made a genuine
and sincere effort to determine the true identity of his natural mother and/or
parents. While the Bureau has cooperated in providing him considerable
information, it has been precluded by law from divulging the names of the
biological parents, and Petitioner’s efforts have been to no avail.
-10-
From the
information provided by the Bureau, Petitioner now knows that he was born out of
wedlock and that his natural father purportedly was married other than to his
mother at his birth.
Petitioner seeks in this
proceeding to have the Court direct the Bureau to divulge to him the true
identity of his natural parents insofar as its records show, and to outline the
manner in which this should be done in justice to all concerned in the matter.
In this respect, Petitioner said under oath if his mother were living, for
example, and did not wish to see him, he would abide that decision.
Petitioner argues to this Court
that his sincere and genuine desire to learn the truth of his birth and to have
the knowledge that will bring him peace of mind and contentment constitute “good
cause” for the Court to assist him in the matter, and thereby alleviate future
emotional pain and anguish for him.
This brings into focus the
adoption process which is and has been controlled by statute, since such a
proceeding was unknown to the common law.
Adoption usually has its
genesis in the tragedy and trauma of a child, born into the world without
status, without home and often under an almost insurmountable stigma from
society as an illegitimate. Emotional distress more often than not reaches
laterally to many others involved to some degree in the trauma such as the very
young mother, financial destitution, and family embarrassment.
-11-
It is for
this reason that the law of South Carolina and other states has been concerned
fundamentally with the welfare of the child in preference to the concerns for
all others. This principle applies to all children and their custodians
including adoptive.
The Court cannot review in
detail the history of the adoption law in South Carolina, as interesting as it
might be. But since this action involves a novel proceeding and
constitutes to some extent a Constitutional challenge to the law, some reference
to the law itself is warranted.
The Court does not agree with
the argument of the Bureau that:
“Anonymity of the natural parents is the touchstone of the adoption process. It must be preserved at all costs in order to insure that these infants will be placed in the hands of suitable and qualified persons.”
The
touchstone of the adoptive process is, first, the welfare of the child, and,
secondly, the guarantee to the adoptive parents of freedom from molestation in
performing the responsibility given to them by the law in approving the change
of parental custody.
Anonymity is important at the
time of adoption for the child and adoptive parents and not so much for the
natural parents.
This case is a classic
illustration of that. Here the natural mother saved her own money to live
in a maternity home, although she had a large family; and it -12- was she who
chose to allow the adoption of her child. The father was a resident of
another state, married and had a child by his wife. He most assuredly at
the time was not entitled to much consideration and was not a party to the
proceeding.
The law, therefore, was not
designed primarily to protect the natural parents. Indirectly, the law did
two things. It gave a mother some consolation in the sadness of parting
with her child to know that it would be well cared for, and it did, in fact.,
relieve her of a responsibility she could not meet at the time, for whatever
reason--money, family, friends, future or whatnot. But she had to forego
her right to keep in touch with the child.
It, too, must be recognized
that The Children’s Bureau does not have the exclusive right to make adoption
judgments in South Carolina. Courts have handled adoptions under various
statutory procedures for many years. While the statistics are not before
the Court, it is likely that the Bureau would handle less than 25% of all
adoptions in the State of South Carolina. No such strict rule of secrecy
applies in other cases.
The undersigned in twenty years
of law practice in the State handled many adoptions and the ratio for his cases
would be about 15% Bureau cases. The true facts on most adoptions in South
Carolina are easily procured from judgment rolls recorded in the offices of the
Clerks of Court.
-13-
The Bureau
does a most outstanding work in the adoption of children, and it is to be
commended for its dedication through the years. The benefits to children
and adoptive parents are beyond measure.
The law of South Carolina
Section 15-45-140(c), Code of Laws, 1976, provides in the case of Bureau
adoptions that the records shall remain confidential and be withheld from
inspection except upon Order of the Circuit Court for good cause shown.
The law simply had to recognize
as it must everywhere that the truth at times must take priority. If a
mother who had allowed adoption through the Bureau became wealthy and by her
will left wealth to her child who was unknown to her, could the Court or any law
take from this child what had been bequeathed to him by his natural mother?
If the law could do this, it would be a gross taking of property without due
process of law. The identity would have to be disclosed as a matter of
higher justice.
This is not to say that the law
must adjectly [sic] reject consideration of all other facts and persons.
Consideration of others can be made within Constitutional parameters, and in the
above case if the child were of tender years when the gift was made, the law
would be justified in preserving the gift until the child himself reached
maturity so as not to disrupt him or his adoptive family in their love and
relationship.
A law that imposes secrecy
forfeits the truth and in a -14- free society must always have an unfavored
status. Obviously, the General Assembly recognized this when it vested in
the Courts of South Carolina the responsibility to determine good cause.
And it is likely that this provision only permits the statutory requirement of
secrecy to meet constitutional roll call. Otherwise, it would be grossly
discriminatory and may well transgress the constitution even with this
provision.
Children who are adopted belong
to a special class. They are entitled to equal treatment under the law,
including the pursuit of truth as to heritage, history or whatever. If the
laws of adoption allow some of the class to obtain a lawyer who can go to the
judgment rolls in the Courthouse and get the truth for them but denies the right
to others of the class to seek and find like truth, there is a serious
malfunction of the law which may herald its downfall.
The Court has carefully
considered this case. It finds that the emotional distress, anxiety and
the earnest desire for the truth constitute good cause under the Statute.
Petitioner is now of legal age and fully vested with the constitutional rights
of a citizen of the United States. His unquestioned sincerity in seeking
the truth of his past, justifies, even commands that the Court provide
assistance, with, however, fullest consideration of others.
The Court finds as a fact from
the evidence that Petitioner has no ulterior motive or unsavory purpose in
his -15- seeking the truth. To deprive him of the truth will be to
sentence his life to a period of darkness, and it is doubtful that the law has
the prerogative to do this under the circumstances of this case.
The Court recognizes, as is so
well argued in the brief of the Bureau, that disclosing such information can
bring distress and upset to others. These others would primarily be the
natural parents who may now be well settled in a life that could be greatly
disturbed.
But on the other hand there are
clear legitimate concerns of a child for his parents, both natural and adoptive.
If the son is concerned that his parents, one or both, may be destitute and that
he could help, should the law deny him the truth and abridge his free right to
offer aid to one whom he loves and from whom he is descended? Even if a
parent’s life changes by a later happy marriage, and there are other children it
is a legitimate concern of a half-blood kin to know the truth about his other
kin. We have not yet reached a robot society.
Since there are no procedural
guidelines to assist the Court, some will be offered. Courts for years
have made in camera inspections of confidential documents to determine
relevancy and admissibility. In a case of this kind the Court should first
make an in camera inspection to obtain the information.
When this information is
provided it is the intent of the Court to call confidentially upon SLED to
ascertain certain -16- facts. When this information is provided and
verified as the Court deems proper the Court will hold a further hearing with
the attorneys before disclosing information to Petitioner. After such
hearing, unless compelling reasons appear to the contrary, Petitioner will be
given the background information on his birth and his natural family. The
Court reserves the right to attach specific conditions to the disclosure.
This Court has the power to
enjoin Petitioner in any way it deems proper, and will not hesitate to do so
when considering the welfare of all concerned in this case.
Petitioner has shown “good
cause” to the Court. The relief sought is granted initially to this
extent. The names and record information on the natural parents, such as
last known address, shall be proved in a confidential sealed container to the
Court within a reasonable time for which the Court will receipt the Bureau.
The Court will confidentially inform the Bureau of its actions following the
in camera review, and likewise advise the attorneys of its actions.
The Court will in a final order conclude the matter and outline the restrictions
imposed on Petitioner, if any are deemed right and proper.
The law must be consonant with
life. It cannot and should not ignore broad historical currents of
history. Mankind is possessed of no greater urge than to try to understand
the age-old questions: “Who am I” “Why am I?” Even now the sands and ashes
of the continents are being -17- sifted to find where we made our first step as
man. Religions of mankind often include ancestor worship in one way or
another. For many the future is blind without a sight of the past.
Those emotions and anxieties that generate our thirst to know the past are not
superficial and whimsical. They are real and they are “good cause” under
the law of man and God.
The petition is conditionally
granted.
IT IS SO ORDERED.
April 9, 1979
WADE S. WEATHERFORD, JR.
Resident Judge, Seventh Judicial
This electronic version of this case should
be cited as:
Bradey v. Children's Bureau of South
Carolina, (Spartanburg County, S.C., Ct. C.P., Apr. 9, 1979)