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Backes v. Catholic Family & Community Services

November 4, 1985


Dwyer, J.s.c.


Subsequent to the decision set forth in the Appendix, attached hereto, the court conducted an evidentiary hearing on the question of "good cause."

Backes testified in support of his application. He is 35 years of age. He married Judith Backes on March 22, 1975. They have three children: two daughters, 8 and 7, and a son four-and-one-half years old.

Backes stated that he was adopted. He stated that his interest in information about his natural parents became important to him when his wife was pregnant with their first child. He testified that his interest in his natural parents increased over the years.

In September 1983, he contacted the Agency. In November 1983, he and his wife had a meeting with one of the staff and received a statement of the background of his natural parents without identifying details. (P-1). The statement identifies the ethnic, religious, and family background of each parent, the circumstances of his birth and the reasons given by his biological mother for placing him for adoption. The staff member reviewed it in detail with Backes and his wife. The staff worker advised him that if he had further questions to contact her.

Backes stated that he reviewed the statement. He testified that he wanted more information about his natural parents. He wanted something more than words.

He is a college graduate. He has had stable employment with his present employer for several years.

Concerning his interview with Dr. Irvine Markowitz, M.D., an expert witness for the Agency, Backes stated that he discussed his background, his increasing anxiety and frustration in not getting information; and, he concluded with his impression of Dr. Markowitz. He said that he was a nice man but had a negative attitude toward the responses that Backes gave to the questions. He testified that he could not answer Dr. Markowitz's questions as to why he wanted to know more about his natural parents.

Backes further stated that he had not told his adoptive parents of his inquiry about his natural parents.

On cross examination he stated that he had lived with his adoptive parents until one-and-one-half years before he married at the age of 25. He knew from the age of four that he was adopted, when one of the family cousins of his adoptive parents told him.

He confirmed that he had made no contact with the Agency when his three children were born. He also confirmed that he had held progressively more responsible positions with his employer through the time of the hearing.

In respect to his adoptive parents, he testified that he was no longer a minor and did not need their permission to find out about his background.

He also testified that in 1977, in connection with his adoptive father being in Sloan-Kettering for treatment for a tumor, he heard his adoptive father say that he wished he had not trusted the adoption process. Backes also stated that the Backeses had adopted another child with whom he remained in contact and who was present at that conversation.

He further stated that he had not consulted doctors about anxieties, because he did not need counselling or medicines to resolve his problems.

He stated that his problem started after he got the statement, P-1, from the Agency. He wanted to know more -- the

medical history, the history of both families, and his place of origin.

In response to questions by the Deputy Attorney General, he testified that one of his daughters had a heart murmur. But he further testified that the treating doctors do not regard the family history as important for purposes of treating her.

He further stated that he had discussed with his adopted brother his desire to know more of his past on several occasions. There is no indication that they are biological siblings. He testified that he did not want his life to go by without meeting his natural mother.

Judith Backes testified that she was with her husband when he received P-1. After he received it, she noticed changes in him. He became obsessed with it. He carried it with him. He changed from being an easy going person to one who was irritable and argumentative.

She further stated that he told her before marriage that he had been adopted. He renewed the subject when she was pregnant with their first child. After he received P-1, he changed. He went to an attorney so that someone would share the work with him. He never wanted counselling to solve any problems related to stress and anxiety.

Sharon Bell testified for Backes. She stated that she placed a child for adoption when she was 16. She is now married and has two sons, 9 and 11 years of age. She has been married for 15 years.

She stated that when her first son was born she had a personal crisis. She was in therapy for two months and worked out of it. She discussed her placing a child for adoption with her husband but not with her own mother.

She further stated that she felt that there was a large blank in her life. Her daughter's father was oriental and she felt that her daughter should know that.

She stated that she had done a lot of investigation for a lot of people. Using the techniques she had learned, she was able to locate her child. She stated that she sent her daughter a letter to an address which she had obtained. She then described a telephone call that she received from her daughter in response to her letter. The daughter described her condition. She did not have her daughter meet her family. She went to the daughter. The daughter had no family, so she stayed with the daughter. She stated that they have had an ongoing relationship. She finds that she is at peace with herself.

On cross examination she stated that a friend who is a member of Alma asked her to testify in this case. She said that she is one of them, but has not joined the organization. She does investigation for adoptees.

Alma is for adoptees; she is not an adoptee. While they have their needs, she stated, her needs were different.

In response to questions from the Deputy Attorney General, she stated that her daughter had never undertaken any effort to locate her.

Michele Rabinowitz, Psy. D., testified as an expert for Backes. She has B.A. and M.S. degrees. She received a doctorate in psychology from Rutgers in 1979. She has been licensed as a psychologist in New Jersey since 1979. She is a consulting psychologist to school systems and maintains her own practice.

She examined Backes in her office in February 1985 for about one hour. She had read the opinion set forth in Part I, supra, interviewed him, and utilized 15 cards from the Thematic Aperception Test.

She indicated that following receipt of P-1, Backes stated he became more irritable and argumentative in his daily life, but he did not think that it interfered with his job performance. He becomes volatile and frustrated when he meets resistance to his efforts to get information about his birth parents.

She stated that the results of the Thematic Aperception Test did not indicate any pathological problems. The test reveals some consistent and unique themes. Some indicate loneliness and abandonment as well as daydreaming and fantasy. The themes indicate a concept of not being able to resolve certain problems, which she attributes as the cause for stress he has from not having information to resolve problems about his background.

In her testimony, Dr. Rabinowitz testified that she felt his anxieties have subsided. She also stated that many of her conclusions were based on her observations and judgments rather than information given to her by Backes.

She stated that there was no history of anxiety or volatility prior to November 1983. There was manifestation of anxiety because of his interactions with his wife. She did not remember the cause of the anxiety and had made no notes concerning the subject matter of differences with his wife. He did not mention specific problems at work. She did not pursue the subject, because she was not concentrating on work problems. She found no problems related to the fact that his college degree was in art and his present work has little relationship to art.

The results of the Thematic Aperception Test are related to the interpretative answers. She did not give a battery of tests, because she was not doing a total evaluation of Backes. She sought to find out what themes he found in his life. She found, in response to 5 out of 15 cards, there were themes of loneliness and abandonment. In respect to 7 out of 15 cards, where he was asked to tell what story the cards projected, he could not end the story. The story itself does not matter to a psychologist but the inability to end them does. It was indicative of his unresolved life status. She found his statement that a card depicting a boat on a river near a tree as one having a "blurred background" unique. No one else had ever described

that picture that way. She concluded that it was indicative of his anxiety over lacking information about his natural parents.

She explained that in her experience adoptees desire that information to have a feeling of better control over their lives. She stated that his need to know is based on his need to integrate information about his background into his self image. She stated that it is normal to ask about ones' past, but most people have information to resolve the questions about their past.

She agreed with a statement in Dr. Irvine Markowitz' report that Backes is secure in his own identity. But she disagreed that the added information would not be helpful. It is not just a question of making him happy but aiding him to resolve open questions about his origin.

Dr. Irvine Markowitz, who has been a licensed physician in New Jersey since 1946, and a Diplomat of the American Board of Psychiatrists since 1951, ("Markowitz"), testified as an expert for the Agency. He is the Medical Director for the Orange Foundation and Child Services for Maplewood and the Oranges.

He testified that he conducted an oral examination of Backes but stated that he administered no tests. Based on his examination, he found that Backes was emotionally stable and had no emotional problems. He further stated that considering the average run of people, he found that Backes showed no signs of emotional needs with any deprivation.

He also testified that, in his opinion, Backes had no psychiatric need to receive any further information concerning his natural mother. He stated that his opinion was based on the fact that Backes was very certain that he had an absolute right to know all about his natural mother and had an idea that it would be useful for his children to know their genetic history. But from his discussion with Backes there was no indication that either Backes or his children have any gross difficulties for which such information would be useful. He was aware that

one child of Mr. and Mrs. Backes had a heart murmur, but Backes is not seeking information for this reason.

He stated that, in his opinion, Backes was very sure of what he wants but he has not considered fully what jeopardy his pursuit creates for the emotional lives of others. In his opinion, there is no emotional or medical need for further information about his natural parents for himself or his children.

On cross examination he conceded that he referred to Backes as James instead of John. He further stated that Backes expressed the view that his natural parents should want to meet him. Dr. Markowitz conceded that having more information about his background could be helpful medically.

He stated that if a patient had a great deal of stress and anxiety one would have to find the cause of it. One could not just rely on the verbal statements of a patient. Based on his examination, he found no symptoms of burning anxiety. He did not regard Backes as a foolish individual, but he did consider the expressed anxiety to be false. In his opinion some of the symptoms of loss of appetite and loss of sleep can be related to other pressures, such as those associated with the litigation and other phases of living.

Betty Borenson testified for the Agency. She has an M.S. degree from Columbia University. She has worked for the Agency since 1980. She has been Adoption Coordinator since 1983. She works with women who are pregnant, potential adopting parents, birth parents and adoptees. When Backes contacted the Agency, she handled his request for information about his birth parents. He telephoned in September 1983. She explained that the Agency would provide all non-identifying data. She would check the records and get back to him.

She stated that it is the Agency's policy to honor the commitment of confidentiality to the natural parents and the adopting parents. She testified that each request is reviewed individually.

When she located the records for Backes she arranged a meeting with Mr. and Mrs. Backes. She stated that it is the policy of the Agency to have a personal meeting. The reason for this is to evaluate the emotional states of the individuals and to see how they respond to the information.

During the meeting all the details of P-1 were reviewed. She stated that Backes was proud of his family, pleasant and interested in the information. The meeting lasted one hour.

Backes telephoned about one week later. He wanted to know the time of his birth, whether he was baptized before he was placed for adoption, and the identity of his mother so that he could make contact with her. She declined to give the latter. She had one other direct telephone call from him.

She stated that the Agency has received about 15 inquiries from adult adoptees for information. It is the agency's policy to provide non-identifying information about circumstances surrounding the adoption, as well as medical history, general physical descriptions of the birth parents, ethnic, and religious information about them.

On cross examination she stated that it is the policy to honor confidentiality but it depends upon the circumstances. At the time of the hearing, the Agency had under review a request from a treating physician for an adoptee for genetic information. The adoptee was over 20 years of age.

In connection with inquiries for background information, the professional staff has input in the decisions. The Agency also places in all files letters from adoptees and from natural parents. If there should be a match, the Agency's stated policy is that it would honor the request. On cross examination by the Deputy Attorney General, she stated that the Agency has never had a match. She further stated that confidentiality applies to natural parents, adopting parents, and adoptees.

Father Vitello, Director of the Agency testified. He holds a Masters degree in Social Work from Rutgers University. He

has been the Director since 1971. Prior to that he was a case worker and director of a residential treatment center.

He testified that the Agency is an approved Child Placement Agency by the State of New Jersey. The Agency started in 1937. Since 1946, when adoptions increased, the Agency has placed 1,300 children. Since 1983, he stated that the Agency received about ...

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