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Renee Blackwell v. Dolores Helb


January 31, 2011


The opinion of the court was delivered by: Hon. Garrett E. Brown, Jr.



BROWN, Chief Judge:

This matter comes before the Court upon Defendant Dolores Helb's motion for summary judgment (Doc. No. 36) against Plaintiff Renee Blackwell. This Court has considered the parties' arguments and decided the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. For the following reasons, the Court will grant Defendant's motion.


This civil rights dispute concerns the privacy interest in sealed adoption records maintained by a state government agency. In discussing the relevant facts, the Court draws all reasonable inferences in favor of the non-moving party.See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The following facts are undisputed. Approximatelythirty years ago, Plaintiff Renee Blackwell placed her daughter, whom this Court will refer to as "DH ," up for adoption in the State of New Jersey. (Def.'s L. Civ. R. 56.1 Statement ("Def.'s Statement") ¶ 1; Pl.'s L. Civ. R. 56.1 Resp. ("Pl.'s Statement") ¶ 1.) Plaintiff avers that DH was conceived through rape, and that she placed DH up for adoption because she was incapable of providing for an infant at that time. (Am. Compl. ¶ 13; Pl.'s Resp. Br. at 2.*fn1 ) Plaintiff claims that she wished to put the traumatic event behind her and did not wish to have any future contact with DH. (Am. Compl. ¶ 14.)

In August 2008, DH contacted the New Jersey Department of Children and Families, Division of Youth and Family Services ("DYFS") regarding information on her birth family. According to Defendants, DYFS policy permitted DYFS representatives to disclose identifying information about the biological family to adult adoptees when the birth parents and/or biological siblings consent to such disclosure. (See Def.'s Statement ¶ 12; Pl.'s Statement ¶ 12.) As a result of DH's inquiry, Defendant Dolores Helb, a DYFS representative, sent a letter to Plaintiff with an Adoption Registry Release form, advising Plaintiff that an adult adoptee sought information about, and possible contact with, her birth family. (Def.'s Statement ¶¶ 2--3 & Ex. B; Pl.'s Statement ¶¶ 2--3.) The correspondence asked Plaintiff to review the information provided and indicate whether she "w[as] interested in pursuing this matter." (Def.'s Statement ¶ 4 & Ex. B; Pl.'s Statement ¶ 4.) Plaintiff did not respond in any manner to the DYFS letter. (Def.'s Statement ¶ 9; Pl.'s Statement ¶ 9; Am. Compl. ¶ 20.) On December 1, 2008, Helb also sent a similar information/contact request to Plaintiff's other daughter (DH's biological sister), whom this Court will refer to as "JB." (Def.'s Statement ¶ 6 & Ex. D; Pl.'s Statement ¶ 6.) JB responded to this letter, providing her cell phone number. (Def.'s Statement ¶ 10 & Ex. E ("JB Dep.") at 12--13; Pl.'s Statement ¶ 10.) On or about December 9, 2008, Helb received JB's consent form, and a DYFS representative informed*fn2 DH that she could contact her biological sister. (See Co-Defendants Statement ¶ 30; Jordan Decl. Ex. D (Helb Dep.) at 22--23; Pl.'s Statement ¶¶ 18--21.) Shortly thereafter, in late December or early January 2009, JB called and spoke with a DYFS representative, whereupon she was advised that her biological sister had attempted to contact her via telephone. (Def.'s Statement ¶¶ 11--12 & JB Dep. at 13--16; Pl.'s Statement ¶¶ 11--12.) After speaking with the DYFS representative, JB eventually made contact with DH. (Def.'s Statement ¶ 13 & JB Dep. at 18; Pl.'s Statement ¶ 13.) JB does not recall speaking with Ms. Helb. (Def.'s Statement ¶16; Pl.'s Statement ¶ 16.) In December 2008, DH appeared unannounced at the home of Plaintiff, her birth mother. (Def.'s Statement ¶¶ 14--15; Pl.'s Statement ¶¶ 14--15; Am. Compl. ¶¶ 26--27.) According to Plaintiff, the encounter left her "feeling violated, in shock, and short of breath." (Am. Compl. ¶ 28.)

Subsequently, on June 18, 2009, Plaintiff filed suit against Ms. Helb and other DYFS employees, both individually and in their official capacities, under 42 U.S.C. § 1983, alleging that Defendants invaded Plaintiff's constitutional right to privacy by revealing the contact information of Plaintiff and JB to DH. Plaintiff seeks statutory, compensatory, and punitive damages, as well as injunctive relief. Ms. Helb now moves for summary judgment,*fn3 arguing: (1) that Plaintiff has not advanced any evidence that Helb disclosed identifying information about the Plaintiff that led DH to discover her birth mother; and (2) that Helb's conduct is shielded by sovereign immunity and qualified immunity.


A party seeking summary judgment must "show that there is no genuine issue as to any material factand that the movant is entitled tojudgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 322 (1986); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting that no triable issue exists unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict in its favor). In deciding whether triable issues of fact exist, this Court must view the underlying facts and draw all reasonable inferences in favor of the non-moving party. Matsushita, 475 U.S. at 587; Pa. Coal Ass'n v. Babbitt, 65 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987). This Court has jurisdiction pursuant to 28 U.S.C. § 1331, because the matter is based on a federal question.

Plaintiff's claim arises under 42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In order to state a claim for relief under § 1983, a plaintiff must allege (1) the violation of a right secured by the Constitution or laws of the United States and (2) that the alleged deprivation was committed or caused by a person acting under color of state law. See, e.g., West v. Atkins, 487 U.S. 42, 48 (1988); Baker v. McCollan, 443 U.S. 137, 140 (1979); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Here, Plaintiff filed her § 1983 claim against Defendant in both her individual and official capacities.

Helb argues that Plaintiff has not provided any factual support for her claim that Helb revealed any information concerning Plaintiff or her children to DH, and, thus, that Plaintiff has not established that Helb violated her privacy rights. Further, Helb contends that she is immune from suit as a state employee under principles of sovereign and qualified immunity. (Def.'s Br. at 14--16.) Plaintiff disagrees, arguing that Helb's disclosure of identifying information is supported by the undisputed records, and that Helb's conduct is not protected by sovereign and qualified immunity because Helb violated her clearly established privacy rights. Although her argument is not entirely clear, the Court understands Plaintiff's position to be that the Due Process Clause of the Fourteenth Amendment and a New Jersey statutory provision, N.J. Stat. Ann. § 9:3-52(a), clearly established her right to remain an anonymous birth mother, and that Helb's disclosure violated these rights. (Pl.'s Br. at 4--7.) The Court will begin by disentangling Plaintiff's official capacity and individual claims, as well as Defendant's respective immunity defenses.

A. Plaintiff's Official Capacity Claim

In her response brief, Plaintiff appears to withdraw her official capacity claim against Helb (see Pl.'s Resp. Br. at 2, 7), but Plaintiff's position on this issue is not entirely clear. Regardless, the Court agrees with Helb that Plaintiff's official capacity suit will not lie.

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend XI. Absent consent by a state, the Eleventh Amendment bars federal court suits for money damages against state officers in their official capacities. See, e.g., Kentucky v. Graham, 473 U.S. 159, 169 (1985). Individual state employees sued in their official capacity are also entitled to Eleventh Amendment immunity because "official-capacity suits generally represent only another way of pleading an action" against the state. Hafer v. Melo, 502 U.S. 21, 25 (1991) (internal quotation marks omitted). Section 1983 does not override a state's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 (1979). Furthermore, neither states, governmental entities that are considered arms of the state for Eleventh Amendment purposes, nor state officers sued in their official capacities for money damages are "persons" within the meaning of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 64 (1989); Grabow v. S. State Corr. Facility, 726 F. Supp. 537, 538--39 (D.N.J. 1989) (holding that the New Jersey Department of Corrections is not a person under § 1983)). Because the Eleventh Amendment bars suit against Defendant in her official capacity, and because Defendant is not a "person[]" under § 1983 for such purposes, Plaintiff's claims against Defendant in her official capacity cannot stand.*fn4

B. Plaintiff's Individual Claim

A plaintiff may still bring suit under § 1983 against state employees in their individual capacities. Indeed, a state employee may be held personally liable for actions taken while performing official functions. Hafer, 502 U.S. at 26 ("State officers sued for damages in their official capacity are not 'persons' for purposes of the suit because they assume the identity of the government that employs them. By contrast, officers sued in their personal capacity come to court as individuals."); Melo v. Hafer, 912 F.2d 628, 637 (3d Cir. 1990) (rejecting "[the] suggestion that a state official can be sued in her personal capacity only if the allegedly unconstitutional actions were not taken in her official capacity," and explaining that "[t]he Supreme Court cases expressly recognize that individual capacity suits may be brought against government officials who acted under color of state law") (citing Brandon v. Holt, 469 U.S. 464, 472--73 (1985); Owen v. City of Independence, 445 U.S. 622, 637--38 (1980)). As noted above, Helb contests Plaintiff's proof that Helb actually disclosed identifying information and argues in the alternative that her conduct is shielded by the doctrine of qualified immunity. The Court will address the factual issue regarding Helb's conduct before turning to the qualified immunity issue.

1. Plaintiff's Proffer Regarding Helb's Conduct

Plaintiff relies on the admissions of Helb's co-Defendants, who state that Helb relayed the "news" to DH that she could contact her biological sister JB. (Co-Defendants Statement ¶ 30.) Helb's deposition testimony in this regard, upon which her co-Defendants relied, indicates that she and/or co-Defendants gave DH her sister's contact information. (Helb Dep. at 23:1--6 (explaining how DYFS received the consent form from JB, and explaining that "we gave the information to [DH]"). Considering that it is undisputed that Helb signed the initial correspondence requesting permission to disclose Plaintiff's and JB's identities, Helb's testimony and co-Defendants' submissions persuade this Court that there is a genuine issue of material fact regarding whether or not Helb disclosed identifying information to DH. However, the Court notes that Plaintiff has presented no evidence that Helb (or any DYFS representative) directly revealed identifying information about Plaintiff, as opposed to Plaintiff's daughter JB. (Cf. Pl.'s Resp. Br. at 1 (arguing that Helb's disclosure of JB's contact information "enabl[ed] Howell's back-door discovery of Plaintiff's otherwise confidential identity").) Accordingly, in considering Plaintiff's constitutional claim, the Court will not entertain speculation that Helb revealed Plaintiff's information to DH.

2. Qualified Immunity

Unlike official capacity suits, state officials sued in their individual capacities "may assert personal immunity defenses such as objectively reasonable reliance on existing law." Hafer, 502 U.S. at 25. Qualified immunity shields state officials*fn5 from liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Before assessing Helb's qualified immunity defense, the Court must address Helb's failure to include this affirmative defense in her Answer.*fn6

a. Waiver

Generally speaking, "[a]n affirmative defense which is neither pleaded as required by Rule 8(c) nor made the subject of an appropriate motion under Rule 12(b) is waived." Systems, Inc. v. Bridge Elec. Co., 335 F.2d 465, 466 (3d Cir. 1964). "Courts in this Circuit, however, have taken a more forgiving approach to parties who fail to raise affirmative defenses in an answer, as courts have held that the failure to raise an affirmative defense by responsive pleading or appropriate motion does not always result in waiver." Sultan v. Lincoln Nat'l Corp., Civ. No. 03-5190, 2006 WL 1806463, at *13 (D.N.J. June 30, 2006) (citing Prinz v. Great Bay Casino Corp., 705 F.2d 692 (3d Cir.1983)). Federal Rule of Civil Procedure 15 imposes instructs courts to "freely give leave [to amend the pleadings] when justice so requires," Fed. R. Civ. P. 15(a)(2), and the Third Circuit has recognized that a "defendant does not waive an affirmative defense if '[h]e raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.'" Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991) (citations omitted). The Third Circuit has extended these principles to qualified immunity defenses raised for the first time by a motion for summary judgment, instructing courts to consider "whether the defendants violated any scheduling orders in raising the defense for the first time in their summary judgment motions, whether they delayed asserting the defense for tactical purposes or any improper reason, and, most important, whether the delay prejudiced the plaintiff's case." Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 210 (3d Cir. 2001).

Here, Defendant Helb did not raise a qualified immunity defense in either her original Answer or Amended Answer, but instead raised the defense for the first time in her motion for summary judgment. (See Def.'s Br. at 15--16.) Her co-Defendants raised the affirmative defense in both their original Answer and Amended Answer, however. (See Doc. Nos. 17, 33 Third Affirmative Defense.) There is no suggestion of tactical delay, and Plaintiff does not object to Helb's reliance on the defense. Furthermore, in light of co-Defendants' pleadings, the Court finds that the defense does not come as an unfair surprise to Plaintiff. Plaintiff has had a full and fair opportunity to respond to the qualified immunity defense, and therefore the Court finds that consideration of the defense will not prejudice Plaintiff.

b. Qualified Immunity Standard

"The inquiry into the applicability of qualified immunity is twofold: (1) whether the plaintiff demonstrated the deprivation of a constitutional right, and (2) whether that right was established at the time of the alleged deprivation." Dancy v. Collier, 266 F. App'x 102, 104 (3d Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Helb contends that the disclosure of JB's contact information to DH, her biological sister, did not violate the constitutional privacy rights of Plaintiff, the birth mother, and if it did, such right was not clearly established when the disclosure took place. The Court agrees on both counts.

c. Deprivation of a Constitutional Right

Plaintiff's Complaint contends that Helb's disclosure of JB's contact information to DH indirectly abridged privacy rights guaranteed by the First, Fourth, and Fourteenth Amendments. (Am. Compl. ¶ 50.) Properly characterized as a "liberty interest" claim under the Due Process Clause of the Fourteenth Amendment, Plaintiff argues that birth parents who give their children up for adoption have a privacy interest in the confidentiality of adoption records. Plaintiff grounds her claim in the Supreme Court's reproductive privacy cases, such as Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), as well as cases recognizing a right to privacy for medical records, such as Doe v. Delie, 257 F.3d 309 (3d Cir. 2001). (Pl.'s Br. at 5--6.) But these cases did not deal with privacy interests in the context of adoption, and Plaintiff presents no authority supporting the contention that the Constitution guarantees the confidentiality of adoption records. Accordingly, this Court must examine the prevailing authority on the substantive protections afforded by the Due Process Clause of the Fourteenth Amendment.

The Supreme Court has recognized that the Due Process Clause of the Fourteenth Amendment provides substantive protections in "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education." Paul v. Davis, 424 U.S. 693, 713 (1976); see also Paul P. v. Verniero, 170 F.3d 396, 405 (3d Cir. 1999). Towards this end, the Supreme Court has found unconstitutional laws prohibiting sexual relations between consenting adults, Lawrence v. Texas, 539 U.S. 558, 578--79 (2003); laws that place an undue burden on a woman's decision whether or not to have an abortion, Casey, 505 U.S. at 876--78; laws prohibiting distribution of contraception, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); and laws prohibiting parents from sending their children to parochial school and banning the teaching of foreign languages to schoolchildren, Pierce v. Society of the Sisters, 268 U.S. 510, 534--35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399--403 (1923).

In Whalen v. Roe, the Supreme Court recognized another type of privacy interest- "avoiding disclosure of personal matters." 429 U.S. 589, 599 (1977) (upholding state law requiring the state's collection of data regarding patients prescribed certain types of drugs). Unlike the privacy decisions that protected personal autonomy "in making certain kinds of important decisions," and thereby conferred affirmative rights, this privacy interest acted as a shield against state actors revealing certain types of sensitive information. See Whalen, 429 U.S. at 599--600 & n.24; but see Paul, 424 U.S. at 713 (rejecting procedural and substantive due process claims premised on reputational injury inflicted by state officers' distribution of materials to merchants that described plaintiff as an "Active Shoplifter"). The Whalen Court did not elaborate on the extent of this right to informational privacy, but the Third Circuit has found that the protection extends to personal medical records, United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.1980), and, to a lesser extent, to prisoners' medical records, Doe v. Delie,257 F.3d 309, 315--317 (3d Cir. 2001) (citing Turner v. Safley, 482 U.S. 78, 89 (1987), and suggesting that prisoners' privacy interest would be infringed by the disclosure of medical information if the disclosure was not "reasonably related to legitimate penological interests"). At the same time, the Third Circuit has rejected claims that Due Process protects the confidentiality of expunged criminal records, Nunez v. Pachman, 578 F.3d 228, 232--33 (3d Cir. 2009), and the Circuit has rejected a Due Process challenge to a sex offender registry law, despite "[a]ccepting" the contention that sex offenders had "some nontrivial interest in [the confidentiality of their] home address," because the state had a compelling interest in informing the public of the whereabouts of sex offenders, Paul P., 170 F.3d at 404.

The Third Circuit has recognized that courts have been "reluctant to expand" federal constitutional protection for confidential information, explaining that Due Process "shields from public scrutiny only that information which involves 'deeply rooted notions of fundamental personal interests derived from the Constitution.'" Nunez, 578 F.3d at 232 (citing Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986) (citing Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 228--30 (1985) (Powell, J., concurring))). The right to informational privacy "protects against public disclosure only 'highly personal matters' representing 'the most intimate aspects of human affairs.'" Nunez, 578 F.3d at 231--32 (quoting Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996); Wade v. Goodwin, 843 F.2d 1150, 1153 (8th Cir. 1988)). In considering new privacy claims premised on the right to confidential information discussed in Whalen, the Third Circuit has instructed courts to "look[] at whether [the information] is within an individual's reasonable expectations of confidentiality. The more intimate or personal the information, the more justified is the expectation that it will not be subject to public scrutiny." Paul P., 170 F.3dat 401 (citing Fraternal Order of Police v. City of Phila., 812 F.2d 105, 112-13 (3d Cir. 1987)).

Accepting for purposes of this motion that Helb disclosed JB's contact information to DH in accordance with DYFS policy, and that this disclosure enabled DH to locate Plaintiff, the Court finds that Plaintiff has not shown a constitutional violation. First, the privacy interest asserted by Plaintiff-confidentiality of birth parent status for parents who give up their children for adoption-is not sufficiently analogous to the affirmative intimacy, reproductive, and familial autonomy rights recognized in cases like Lawrence, Casey, Eisenstadt, Pierce, and Meyer. Assuming arguendo that the "zones of privacy" recognized in these cases encompass a general right to give up one's child for adoption, DYFS's policy and Helb's alleged conduct did not infringe upon that right. The alleged conduct-disclosure of a biological sibling's contact information to an adult adoptee-occurred many years after the adoption decision and did not directly reveal any identifying information about Plaintiff. Thus, the challenged policy and Helb's conduct in no way restricted Plaintiff's discretion in making the decision to give up her child for adoption. Second, the Court is not persuaded that the information disclosed was the sort of highly intimate, private information entitled to confidentiality under Whalen and its progeny. Plaintiff makes no attempt to show that the confidentiality of sibling contact information "involves 'deeply rooted notions of fundamental personal interests derived from the Constitution.'" See Nunez, 578 F.3d at 232. Furthermore, Plaintiff did not have a reasonable expectation of privacy in JB's contact information; JB was an adult at the time DYFS requested her contact information, and JB consented to the disclosure of her information. Although JB's status as a biological sibling was sensitive personal information, it was personal to her, not Plaintiff.

Plaintiff appears to argue that courts' recognition of "lesser" privacy rights-such as the confidentiality of prisoner's medical records in Delie-warrant a finding of a constitutional violation in this case.*fn7 Although Plaintiff is correct that criminals generally enjoy lesser constitutional protections than free citizens, see Delie, 257 F.3d at 315--17, the privacy interest recognized in Delie bears no relation to the privacy interest in this case. On the one hand, Plaintiff claims a new privacy interest that is far broader than the established privacy interest contemplated in Delie. Here, Plaintiff effectively claims a constitutional interest in suppressing another person's discretion regarding whether or not to reveal her privileged information to a biological sibling. By comparison, the Delie court concluded that prisoners had the same privacy interest in the confidentiality of medical records that had been recognized by the Third Circuit more than twenty years earlier in Westinghouse, just a less robust version of that right that balanced the prisoners' privacy interests against the legitimate penological interests of the state. See Delie, 257 F.3d at 315--317. In any event, Delie cuts against Plaintiff's argument because, notwithstanding the then-long-established rule of Westinghouse, the Delie court found that the privacy interest was not clearly established in the prison context, and thus held that the prison officials who disclosed the plaintiff/inmate's HIV status were entitled to qualified immunity. Id. at 322. Here, Plaintiff does not present a modest variation on an existing privacy interest, but an expansive privacy interest only tangentially related to the Fourteenth Amendment's established liberty interests.

Plaintiff also contends that N.J. Stat. Ann. § 9:3-52(a), a statute that mandates adoption records be kept under seal,*fn8 supports her constitutional claim, arguing that "[c]courts overwhelmingly looking towards state statutory protections as evidence of substantive due process rights." (Pl.'s Br. at 5.) Plaintiff is mistaken. While the historical development of state laws may be relevant to the consideration of whether particular rights are so "deeply rooted" as to inhere in the federal Constitution's guarantee of due process, see, e.g., Washington v. Glucksberg, 521 U.S. 702, 710 (1997) (commencing the substantive due process inquiry "by examining our Nation's history, legal traditions, and practices"), numerous decisions in this Circuit and elsewhere have recognized that specific rights granted by a particular state law do not affect the substantive protections afforded by the federal Constitution, e.g., Nunez, 578 F.3d at 233; Eagle, 88 F.3d at 626; Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995).*fn9 To hold otherwise would render federal constitutional rights subsidiary to the protections of state law, a concept that is anathema to our federal constitutional system.

Lastly, Plaintiff argues that Helb's violation of this statute entitles Plaintiff to relief. This argument, too, is of no moment, because the only claim in Plaintiff's Complaint arises under 42 U.S.C. § 1983, which generally does not provide a private right of action for claims premised on state law. See, e.g., Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). If Plaintiff intended to present a state law claim premised on N.J. Stat. Ann. § 9:3-52(a), and presuming that New Jersey law permits a private right of action to enforce privacy interests implicit in this statute, the appropriate course of action would be to seek leave to amend the Amended Complaint. Plaintiff has not done so. However, even if Plaintiff did seek leave to amend, it appears that such amendment would be futile, because Plaintiff has not shown, let alone alleged, that Helb disclosed information from sealed adoption records.

This Court's conclusion that Plaintiff has not established a constitutional violation is consistent with the two decisions this Court has found involving claims of a federal Constitutional privacy interest in adoption records. In Doe v. Sundquist, the Sixth Circuit denied adoptive parents and birth mothers' request for injunctive relief from a Tennessee statute that would allow the disclosure or previously confidential adoption records to adult adoptees. 106 F.3d 702 (6th Cir. 1997). In Does 1--7 v. State, an Oregon appeals court rejected birth mothers' challenge to a similar Oregon statute. 993 P.2d 822, 835--36 (Or. Ct. App. 1999). Under the Tennessee statute in Sundquist, biological parents, siblings, lineal ancestors, and lineal descendants of an adoptee retained the discretion to exercise a "contact veto" prior to the disclosure of their identity to the adoptee, but the adoptee's relatives "c[ould] veto only contact, not disclosure of their identities." 106 F.3d at 705. The plaintiffs in that case claimed that the new statute violated their federal Constitutional right to privacy.*fn10 The Sundquist court disagreed, rejecting plaintiffs' arguments that the disclosure of adoption records violated the familial and reproductive privacy rights acknowledged by the Supreme Court in Meyer and Casey. Id. at 705--706 (explaining that "[n]othing in the Tennessee statute infringes on th[e] right. . . . to marry and to raise children, [and] also to adopt children and to give up children for adoption," and finding that the new statute placed no undue burden on the purported right to give up one's child for adoption). Relying on Sundquist, the Oregon court in Does 1--7 rejected the birth mothers' substantive due process claim, adding the following insight:

Although adoption is an option that generally is available to women faced with the dilemma of an unwanted pregnancy, we conclude that it is not a fundamental right. Because a birth mother has no fundamental right to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child.

Does 1--7, 993 P.2d at 836.

The Sundquist court also rejected the plaintiffs' claim of a right to informational privacy under Whalen, noting its "skepticism that information concerning a birth might be protected from disclosure by the Constitution," Sundquist, 106 F.3d at 705. Although Sixth Circuit precedent at the time of Sundquist did not recognize a "'general right to nondisclosure of private information,'" see id. at 706 (quoting J.P. v. DeSanti, 653 F.2d 1080, 1090 (6th Cir.1981))-a position ostensibly at odds with the Third Circuit precedent binding on this Court-the Sundquist court's discussion of the public nature of birth records and the countervailing interests of parents and adopted children, this Court believes, is germane to the Court's consideration of the privacy interest advanced by Plaintiff. As the Sundquist court recognized, "[a] birth is simultaneously an intimate occasion and a public event-the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth." Sundquist, 106 F.3d at 705; see accord Does 1--7, 993 P.2d at 836 ("Neither a birth nor an adoption may be carried out in the absolute cloak of secrecy that may surround a contraception or the early termination of a pregnancy. A birth is an event that requires the generation of an accurate vital record that preserves certain data, including the name of the birth mother."). Both the Sundquist and Does 1--7 courts acknowledged that the state had resolved the conflicting interests in favor of disclosure, and held that the Constitution did not forbid the state from making this value judgment. Sundquist, 106 F.3d at 705; Does 1--7, 993 P.2d at 836.

The DYFS policy before this Court is less invasive than the Tennessee statute at issue in Sundquist, which permitted the disclosure of the relative's identity, regardless of the "contact veto." There is no evidence that Helb or any DYFS representative revealed any personal information about Plaintiff. This Court agrees with the Sundquist and Does 1--7 courts that the Constitution permits New Jersey to adopt policies favoring the disclosure of adoption records.*fn11

To enshrine the broad privacy right asserted by Plaintiff as an inviolable constitutional protection would enable a single biological parent to trump the liberty interests of the willing adoptee and all consenting relatives in sharing a familial bond.

d. Clearly Established Right

Having determined that Plaintiff has failed to demonstrate a constitutional violation, this Court must grant summary judgment in Helb's favor. However, the relative dearth of authority on this issue, and the tenuous relation between the privacy interest asserted by Plaintiff and existing substantive due process rights, underscores the fact that, even if this Court found Helb's alleged conduct to infringe Plaintiff's constitutional rights, the right asserted by Plaintiff is not clearly established, and Helb would be entitled to qualified immunity. The clearly established prong of the qualified immunity test concerns "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 201--02; see also Anderson v. Creighton, 483 U.S. 635, 640 (1987); Delie, 257 F.3d at 318. Plaintiff has provided no authority supporting her constitutional privacy claim, and this Court has only located two decisions directly on point-Sundquist and Does 1--7, both of which rejected similar claims. Under these circumstances, the Court cannot say that a reasonable officer in Helb's position would know that the disclosure of a consenting biological sibling's contact information to an adult adoptee was unlawful. Thus, the Court cannot conclude that Helb violated Plaintiff's clearly established rights.


For the aforementioned reasons, the Court will grant Helb's motion for summary judgment (Doc. No. 36) against Plaintiff. Because Plaintiff withdraws all remaining claims against Helb's co-Defendants, nothing remains of this case. An appropriate form of order accompanies this Memorandum Opinion.


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