# FILED
September 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: September 27, 1999 PROMISE DOE, ET AL., ) ) Appellees, ) DAVIDSON CIRCUIT

) Vs. ) ) ) HON. WALTER KURTZ, ) JUDGE DONALD SUNDQUIST, ET AL., ) ) Appellants. ) No. 01-S-01-9901-CV-00006

For Appellant

s: For Appellees: Paul G. Summers Larry L. Crain Attorney General and Repor ter AMERICAN CENTER

FOR LAW AND JUSTICE Michael E. Moore Brentwood, Tennessee Solicitor General Kevin H. Theriot Dianne Stamey Dycus AMERICAN CENTER Deputy Attorney General FOR LAW AND JUSTICE Nashville, Tennessee Panama City Beach, Flori da
For Amici Curiae, Teresa Evetts Hort

on, et al.: Frederick F. Greenman, Jr. Harlan Dodson, III DEUTSCH, KLAGSBRUN & BLASBAND Anne C. Martin New York, New York Julie K. Sandine DODSON, PARKER & BEHM Robert D. Tuke Nashville, Tennessee TUKE, YOPP & SWEENEY Nashville, Tennessee



## O P I N I O N

COURT OF APPEALS REVERSED; TRIAL COURT’S JUDGMENT REINSTATED. ANDERSON, C.J.1 1995 T enn. Pu b. Acts, c h. 523 (c odified at T enn. Co de Ann . §§ 36-1 -101, et seq . (1996 & Supp. 1998)). -2- We granted this appeal to decide whether legislation 1 allowing disclo sure of sealed adoption records to adopt ed persons over the age of 21 impairs the vested rights of birth parents w ho surrendered children under the prior law and thus constitutes retrospectiv e legislation in v

iolation of article I, section 20 of the Tennessee Constitution. We also have considered whether the legislation violates the rig ht to privacy under the Tenness ee Constitution.

The tria l court

dismis sed the p lainti ffs’ acti on for in junctive and d eclarat

ory re lief, holding that the legisl ation did not impair the plai ntiffs’ vested rights or their rights to privacy under the Tenness ee Constitution. The Court of Appeal s reversed the trial court’s judgment, concludi ng that the retrospectiv e application of the legisl ation impaired the vested rig hts of birth parents who sur rendered children under former law with an expectation that records of the adoption woul d not be released.

We agree with the trial court that retrospective applic

ation of legislation allow ing disclosure of adoption records to adopted persons over the age of 21 does not impair the vested rights of bir

th parents in violation

of article I, section 20 of the Tennes see Constitution, nor does it v iolate the right to pri

vacy embraced in the Tenness ee Constitution. We therefore reverse the C ourt of Appeals’ judgment and rei nstate the judgment of the trial court.

BACKGROUND In 1995, the Tennessee Legislatur e enacted several new s tatutory provision s and amendments regarding the l aw of adoption. See 1995 Tenn. Pub. Acts, ch. 523 (codified at Tenn. Code Ann. §§ 36-1- 101, et seq. (1996 & Supp. 1998)). Section 36- 1-127(c) of the new law , which became effective Jul y 1, 1996, provides i n relevant part:

(1)(A) All adoption r

ecords . . . shall be made av ailable to the following eligible persons: (i) [a]n adopted person . . . who is twenty-one (21) years of age or older . . .; (ii ) [t]he legal represent ative of [such] a person . . .;2 The p laintiffs also s ought re lief in federa l court but w ere uns ucces sful. Doe v. Sundquist , 943 F. S upp. 886 (M.D. T enn. 199 6), aff’d , 106 F.3 d 702 (6 th Cir. 199 7), cert. denied , ___ U.S. ___, 118 S. Ct. 51, 139 L. Ed. 2d 16 (1997).

3 Plain tiffs a lso inc luded Kim berly C . and Rus s C., a dop tive pa rents , and Sm all W orld Ministri es, Inc., a non-profi t chil d-placi ng agency. These pl ainti ffs have not cha llenged t he Court of Appeals’ r uling, which was specif icall y li mited to the p laint iffs who were birth par ents. -3- (B) Information . . . shall be released . . . only to the parents, siblings, lineal descendants, or li neal ancestors, of the adopted person . . ., and only with the expr

ess written consent . .. [of] the adopted person . . . .

Id. The new law also provide s for a “contact veto,” under which a p arent, sibling, spouse, lineal ancestor, or lineal descendant may reg ister to prevent contact by the adopted person. Tenn. Code Ann. § 36-1- 128 (1996 & Supp. 1998).

In March of 1997, a group of plaintiffs f iled an action in Davidson County for declaratory and injunctive relief, challenging the constitutionality of the disclosure portion o f the ne w law. 2 Plaintiff Promise Doe alleg ed that she was a birth par ent who surrendered a child for adopti on in 1990 with the assuran ce that the information she provided would remain confidential and sealed and could not b e accessed by the child or the child’s father. Plai ntiff Jane Roe, a birth parent w ho surrendered a child for adoption in 1956, alleged that s he had signed some papers after g iving birth but was advised that the child had d ied. Roe also alleged tha t she was contacted by the Tennessee Department of Human Se rvices in 1988 regarding her biological child’s requests for identifying information. 3

The plaintiffs argued that they had a vested right in the confid entiality of their identity under the law

in effect at the time they surr endered children for adoption and that retrospective appli cation of the 1995 statute viola tes article I, section 20

of the Tennessee Constitution. The plaint iffs also argued that the legi slation interfered with their right to priv

acy, specifically, familial and procreational privacy and the nondisclosure of personal informati on.
After initially gr

anting a temporary res training order that pr

evented disclosure of the records, the trial c

ourt denied the plaintiffs’ req uest for a temporary injunction. The4 The court initial ly gra nted extraor dinary review of t he temporary i njunctio n issue and granted a stay of the procee dings. T he trial cour t dismis sed the suit and e ntered ju dgm ent, notwithst

anding the Court

of Appeals’stay order . The Court of Appeal s thereafter consoli dated the appeals. -4- trial court concluded (

a) that the plaintiffs failed to establ ish they had a vested r ight to confide ntial rec ords und er prior la w that would invalidat e the new la w as retrosp ective legislation under arti cle I, section 20 of the Tennessee Co nstitution, and (b) that the plaintiffs failed to establish that disclosure violated the right to privacy under the Tennessee Constitution. For these same reasons, the trial court later granted the State’s motion to dismiss the action.

The Court of Appeals issued a stay pending disposition of th e appeal. 4 The court then concluded that the sta tute in question viol ated article I, section 20 for the following reasons:

[W]e find that the retrospective applicati on of Section 36-1-127(c) does impair the vested rig hts of birth parents who sur rendered their children for adoption under former law. U nder the prior law, these birth parents had a reasonable expectation that any identifying information would remain confidential if they so desir ed. . . . [T]he DHS regula tion mandating that birth parents be assured of the confidential aspects of the adoptionrelated services . .. adopted in 1988 . . . is indi cative of the expectation of confidentiality prevalent under the prior law. The birth mother plaintiff s all proclaim th at they we re assured c onfidentiality and expected the same under that law. We find that this interes t in the confidentiality of identifying information is a proper interest for the sta te to recognize and protect. Life-changing decisions were made based upon this expectation and to now deprive those who relied upon their l egitimate expectation under the law would be to deprive them of a vested r ight. The Court of Appeals specifically limited its holding to

the plaintiffs who were birth parents. We granted review to c onsider this important is sue of first impression.

ANAL YSIS Standard of Revi ew This case is on appeal from the tr ial court’s dismissal

of the plaintiffs’ suit for failure to state a claim upon w hich relief can be granted. Tenn. R. Civ. P. 12.02(6) . A Rule 12.02(6) motion tests th e legal sufficiency of the pla intiff’s complaint and not the strength of the plaintiff’s ev idence. Riggs v. Burson , 941 S.W.2d 44, 47 (Tenn. 1997).-5-

In ruli ng on su ch a moti on, cour ts must c

onstrue the comp laint i n favor of the pla intiff, accept the allegations of fact as true, and deny the motion unless it appears that the plaintiff can establish no facts suppo rting the claim that w ould warrant relief. Id. When the trial court’s grant of a Rule 12.02(6) motion to dismiss is appealed, we must take the factual allegations contained in the complaint a s true and review the lower courts’ legal conclusions de novo without a presumption of cor rectness. Stein v. Davidson Hotel Co ., 945 S.W.2d 714, 716 (Tenn. 1997).

History of A

doption Statutes i n Tennessee We begin by reviewing the history of adoption law s in Tennessee. In 1852, the General Assembly grant ed jurisdiction to cir

cuit and county courts authorizing the adoption of children; the function of the c ourt was to record the names of the parties and the terms of the adoption. 1852 T enn. Pub. Acts, ch. 338. In 1917, the legislature determined that in cases inv olving children w

hose parentage was unknow n, and who had not been assigned by cour t order to a child-cari ng organization, a t rial judge had the discretion to “req uire that all papers rel ating to the personal hist ory of such child or family history if any

is of record, be sealed and filed in the county archiv

es, to be unsealed only by judic

ial order.” 1917 Tenn. Pub. Act s, ch. 120.

Later amendments provided that r ecords were to be sealed but could be disclosed in the discret ion of the court. In 1949, for instan ce, legislation prov ided that an adopted person over the ag e of 21 could petition the trial judge to review the records and to release any information the judge determined was in the best interes t of the adopted person and the State of Tennessee. 1949 Tenn. Pub. Acts, ch. 127. Similarly, the statute was amended in 1951 to requi re an adopted individual s eeking information to file a court order; disclosure requir ed the court to find that releasi ng the records was in the bes

t interest of the adopted person and the public. 1951 Tenn. Pub. Acts, ch. 202.-6- Other amendments created more inroa ds into the confidentiality provisions of the adoption statutes. In 1982, an amendment allowed an adopted person to file a written request and t

o receive non-identify

ing information from the Department of Human Services about the adopted person’s biological family. 1982 T enn. Pub. Acts, ch. 668. In 1985, an amendment provided f or further disclosure of records if DHS received consent from the biol ogical parents. 1985 Tenn. Pub. A cts, ch. 285. In 1989, an amendment provided that upon a written request of an adopted pers on over age 21, DHS was to search it

s records for information concer ning the location of the birth parent(s) and, if found, request consent for disclosure of the i nformation. If the birth parent consented, DHS was to provide the adopted person with the name, ad dress, and identifying information of the birth parent. 1989 Tenn. Pub. Acts , ch. 507.

As previously noted, the 1995 amendments mandate disclosure of records upon the request of an adopted person ov er the age of 21 without req uiring a court order or consent of the biological par ents. Tenn. Code Ann. § 36-1-127(c )(1). Other portions of the legislation, howev er, establish a procedure b y which a birth par

ent or related individual can “v

eto” any contact with the adopted party who has received the records. Tenn. Code Ann. § 36-1-128 (1996 & Supp.1998). We will now address the constitutionality of these disclosure provisions.

Retrospective Legislation Article I, section 20 of the Tennes see Constitution provi des that “no
retr os pe ct iv e l aw , o r l aw

im pa ir in g t he

ob li ga ti on s o f con tr ac ts , s ha ll be

ma de .” We have construed this prov ision as prohibiting laws “which tak e away or impair v

ested rights acquired under

existing laws

or create a new obligation, impose a new duty, or attach a new disability in respect of transactions or considerations already passed.” Morris v. Gross , 572 S.W.2d 902, 90 7 (Tenn. 1978). A “vested right,” although difficult to define with precision, is one “which it is proper for the state to recognize and protect and of which [an] individual could not be deprived arbitrarily without injustice.” Id. at 905 (citation omitted).-7- In considering whether

a statute impairs a vest ed right under articl e I, section 20, we frequently have observed that statutes which are procedural or remedial in nature may be applied retros pectively. Saylors v. Rig gsbee , 544 S.W.2d 609, 610 (Tenn. 1976). In general, a s tatute is procedural “if it defines the . . . proceeding by which a legal rig ht is enforced, as distingu ished from the law whic h gives or defines the right.” Kuykendall v. Wheeler , 890 S.W.2d 785, 787 (Tenn. 1994) (citation omitted) . A statute is remedial if it pr ovides the means by w hich a cause of action may be effectuated, wrongs addressed, and relief obtained. Dowlen v. Fitch , 196 Tenn. 206, 211-12, 264 S.W.2d 824, 826 (1954). We have clarified, howev er, that even a procedural or remedial st atute may not be applied retr ospectively if it i mpairs a vested right or contractual obligation in viol ation of article I, section 20. Kee v. Shelter Ins. , 852 S.W.2d 226, 22 8 (Tenn. 1993).

Our case law indicate

s that deciding whether a “vested right” exists and has been impaired by retrospec tive application of a statut e entails consideration of many factors, none of which is dis positive. E.g. , Morris , 572 S.W.2d at 907 (focusing on plaintiff’s “vested rig ht” to maintain an already filed cause of action despite new law that effectively dismisse d the suit and prevented its refiling due to a shorter statute of limitations); Saylors , 544 S.W.2d at 610 (analyzing the subs tantive/procedural distinction in determining whether a statute impair ed a vested right or c

ontractual obligation); Ford Motor Co. v. M oulton , 511 S.W.2d 690, 695-97 (Tenn. 1974) (analyzing w

hether legislation depri ved a person of his reasonable expectations under the prior law). In short, there is no precise formula to apply in making this determination.

We therefore agree with the trial cour t that it is useful to employ a multi-factor analysis, such as that e nunciated in Ficarra v. Department of Regulatory Agenci es , 849 P.2d 6 (Colo. 1993): [I]n determining whether a retroactive statute i mpairs or destroys v ested rights, the most important inquiries are (1) whether the public interest is advanced or retarded, (2) whether the retroactiv

e provision giv

es effect to or defeats the bona fide intentions or reasonable ex pectations of affected-8- persons, and (3) whether the statute surprises per sons who have long relied on a contrar y state of the law.

Id. at 16 (alteration in original) (citation omitted). We add to these factors, which encompass the principles dis cussed in our case law , an additional factor discuss ed above: the extent to w hich a statute appears to be pro cedural or remedial. E.g. , Kuykendall , 890 S.W.2d at 787.

In considering the first factor, we observe that the stated primary purpose of the new law reflects cons ideration of the public intere st: [t]he primary purpose of thi s part is to provide mean s and procedures for the adoption of children and adults that recognize and effectuate to the greatest extent possibl e the rights and interest s of persons affected by adoption, especially those of the adopted person s, which are specifically protected by the constituti ons of the United States and the state of Tennessee . . . . Tenn. Code Ann. § 36-1-101(a) (1996 & Supp. 1998). Moreover , with regard to the disclosure of records, the statute expressly provides:

[t]he purpose of this part shall also be to favor the rig hts of adopted persons or other persons for whom any closed recor ds are maintained and their families to obtain information con cerning the lives of those persons and to permit them to obtain informatio n about themselves from the adoption records, sealed r ecords, sealed adoption records, or postadoption records to whic h they are entitled , but also to recogniz e the rights of parents and adopted per sons not to be contacted by the persons who obtain such information, ex cept in compliance with this part. Tenn. Code Ann. § 36-1-101(c) (emphasis added). T he legislation in question is obviously related t

o achieving these leg itimate goals, whic h the General Assembly has found to be in the public interest

.

The second and third factors – the i ntentions or reasonable ex pectations of affected persons, and the surprise t o persons who had relied on a contrary state of the law -- are obviously related to some degree. The Court of Appeals’ decision largely focused on its conclusion that the birth parents had a reasonabl e expectation of confidentiality based on the l aw as it existed w hen they surrendered their children for5 Similarly, gi ven this st atutory history , we also di sagree with the Court of Appeal s’ conclusion that the plaintiffs could reasonably rely on an alleged assurance of confidentiality from either a state agency

or state r

egulati on. -9- adoption. In our view, the Court of Appeals’ analysis is flawed because it does not fully take into account the history of adoption laws in this S tate.

Early adoption statutes di d not require either that records be sealed or that the identity of the parties re main confidential. Later amendments to the statutes provided that even if sealed, records could be disclosed upon a req uest by an adopted person and a judicial finding that disclosure was in the best interest of the adopted person and the public. Still other amendments enacted in 1982 and 1985 permitted disclosure of information under certain circ umstances even without a judicial f inding. There simply has never been an absolute g uarantee or even a reasonable expectation by the bir

th parent or any other party that adoption records wer e permanently sealed. In fact, reviewing the hi story of adoption statutes in this state reveals j ust the opposite. Accordingly, w

e disagree with the C

ourt of Appeals’ conclusion that the plaintiffs had a vested right in the c

onfidentiality of records c oncerning their cases w ith no possibility of disclosure. 5 Cf. Moulton , 511 S.W.2d at 695-97 (finding that reasonable ex pectation under prior law was impaired by retroactive application of statute reviving an otherwise barred cause of action).

Finally, we concl ude that the 1995 amendments are both proced ural and remedial. Under former statutes , disclosure of records r equired a judicial determination that disclosur e was in the best interes t of the adopted person and the public. Upon such a determina tion, there was no req uirement that the birth parents or other individuals be noti fied or have the option to reg ister a “veto” prev enting contact. The new law, on the other hand, reflects the legislat ure’s view that the disclosure of records is in the best i nterest of the adopted person and the publ ic. It mandates disclosure of records if r equested by an adopted person 2 1 years of age or older, yet, unlike prior law, balances disclosure by allowing a “v

eto” that prevents contact with the adopted person. Tenn. Code Ann. § 36-1- 130 (1996). It does not create new rights or-10-

allow acce ss to any re cords tha t previous ly were not t o be relea sed. In su m, we believe that these new methods and standards for disclosure are proce dural in nature and reflect the legislatur e’s effort to create legisl ation that advances the best i nterest of adopted persons and the public.

Accordingly, w

e have considered the publi c interest advanced by the 1995 legislation, the reasonab le expectations of persons affected by the legislation, the surprise to person s relying on the statu tory provisi ons in ef fect pri or to the e ffecti ve date of this legislation, and the extent to which the new law is procedural or remedial in nature. We conclude that retrospective application of the legislation now codified in Tenn. Code Ann. § 36-1-127(c) does not impair the vested rights of the plaintiffs in violation of article I, section 20 of the Tennessee Constitut ion.

Right to Privacy The plaintiffs assert that disclosure pursuant to Tenn. Code Ann. § 36-1-127(c) violates their rig ht to privacy under article I, sections 1, 3,and 20, and article XI, section 8 of the Tennessee Constituti on. They allege that the st atute invades the rights of familial and procr eational privacy, a

s well as the rig ht to non-disclosure of personal information.

In Davis v. Davis , 842 S.W.2d 588 (Tenn. 1992), we recogniz ed that, although a right to privacy is not mentioned in either the federal or Tennessee Constitution s, “there can be little doubt about its grounding in the concept of liberty reflecte d in those two documents.” Id. at 598. We observed that “the notion of indiv idual liberty is .

. . deeply embedded in the Tennessee Cons titution” and concluded “that there is a right of individual privac

y guaranteed under and prot ected by the liberty clauses of the Tennessee Declaration of Rights.” Id. at 599, 600. Although Tennessee’s right of privacy incorpor

ates some of the features of the right to privacy under the feder al constitution, we are free to extend greater protec tion in applying our own state constitution. Id. at 600.6 The contact veto provisi ons are strengt hened and enforced by both criminal

sanctions and civil remedies. Tenn. Code Ann. § 36-1-132 (1996 & Supp. 1998). -11- As the plaintiffs argue, and the St ate concedes, the right to pr ivacy under the Tennessee Constitution includes the right of procreation. Id. The right to privacy also encompasses “the right of pare nts to care for their chil dren without unwarr anted state intervention.” Hawk v. Hawk , 855 S.W.2d 573, 579 (Tenn. 1993). These rights under our state constitution are l ikewise reflected in th e United States Constitutio n. E.g. , Bellotti v. Baird , 443 U.S. 622, 634, 99 S. Ct. 3035, 3043, 61 L. Ed. 2d 797 (1979); Roe v. Wade , 410 U.S. 113, 152, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147 (1973).

The plaintiffs argue that disclo sure of adoption records inv ades the rights to familial privacy by

impeding a birth parent’s freedom to determine whether to r aise a family and disrupting both biological and adoptiv

e families by releasing

identifying information previously

sealed. We disagree.

The disclosure provisi ons reflect the legislatur e’s determination that allow ing limited access to adoption r ecords is in the best inter est of both adopted persons and the public. The provisi ons do not, however, al low unfettered access in di sregard of the sensitivities and pr

ivacy interests i nvolved. To the contrar y, disclosure is l imited to an adopted individual or that individual’s legal representative, 21 y

ears of age or older. Moreover, extensiv

e provisions are included to allow a birth parent or other related individual to regi ster a “contact veto” and eliminate or reduce the ri sk that disclosure of identifying information w ill have a disruptiv

e effect upon the lives of the biolog ical and adoptive families. 6 Similarly, the plaintiffs’ disruption argument is dubious in that it is predicated upon a speculativ e risk of disruption that may or may not occur a minimum of 21 years after the adoption occur s. In short, the statute does not impede traditional familial privacy r

ights such as marry

ing, having chil dren, or raising chi ldren.

The plaintiffs also argue that dis closure impedes the right to procreational pr iv ac y b y i mp ed in g t he

bi rt h p ar en ts ’ d ec is io n of w he th er to ca rr y a ch il d t o t er m. We again disagree.7 The Sixth Circui t has li kewise concluded on sev eral occasi ons that t here is no constitution al right to the n on-disc losure of person al inform ation. Jarvis v. Wellman , 52 F.3d 125, 126 (6th Cir. 19 95); Doe v. Wigginton , 21 F.3d 733, 740 (6th Cir. 19 94); J. P. v. De Santi , 653 F.2d 1080, 1090 (6th Cir. 19 81). -12- The decision of whether to car ry a pregnancy to term implicates privac y rights under the federal and state constit utions. Davis , 842 S.W.2d at 601. This decision differs fundamentally from the decision of whether to surrender a c hild for adoption. The right of adoption is statutor y. It was created t

o protect the interests of chi ldren whose parents are unable or unwilling to prov

ide for their care, Young v. Smith , 191 Tenn. 25, 33, 231 S.W.2d 365, 369 (1950), and not to advanc e a procreational right

to privacy of the biolog ical parent. Although th e prospect of having the r ecords of the adoption released to the child 21 years later may have some bearing on the decision, it is far too speculative to conclude that it interferes w ith the right to procr

eational privacy. Moreover, the prospect of disclosure under the legislation at issue in this case is nothing new; as already discussed, disclosure has long been permitted in some form under Tennessee statutory law

.
Finally, the plaintiffs contend that disclosure vi olates a privacy right to nondisclosure of personal informati on. We have held, however, that the c onfidentiality of records is a statutory

matter left to the legislat ure. E.g. , Tennessean v. Electric Pow er Bd. of Nashville , 979 S.W.2d 297, 300-01 (Tenn. 1998); see also Thomps on v. Reynolds , 858 S.W.2d 328 (Tenn. Ct. App. 1993). Absent a fundamental r ight or other compelling reason, we reject the invitation to extend constitutional pr otection to the non-disclosure of personal i nformation. 7

CONCLUSION We conclude that the disclosure of adoption recor ds as provided in 1995 Tenn. Pub. Acts, ch. 523, codified at Tenn. C ode Ann. § 36-1-127(c), does not impair the plaintiffs’ vested rights in violation of arti cle I, section 20 of the Tennessee Co nstitution and does not violate the plai ntiffs’ right to priva cy under the Tennessee Constitution. Accordingly, w

e reverse the judgment of the Court of Appeals and reinstate th e judgment of the trial court. The stay granted by the Court of Appeals prohibiting the-13-

release of adoption records under the provisions of Te nn. Code Ann. § 36-1-127(c) is lifted.

Costs of appeal are taxed to the appellees, for which execution shall issue if
necessa ry.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, Hol der, and Barker, JJ.