NOTE: The governor signed this measure on 5/22/2014. SENATE BILL 14-051 BY SENATOR(S) Tochtrop, Aguilar, Guzman, Heath, Herpin, Jahn, Johnston, Kefalas, Kerr, Lambert, Lundberg, Marble, Newell, Nicholson, Rivera, Schwartz, Steadman, Todd, Ulibarri, Zenzinger, Carroll; also REPRESENTATIVE(S) Saine, Ginal, Hullinghorst, Kraft-Tharp, Lebsock, Ryden, Schafer, Singer, Young, Ferrandino. Concerning access to records relating to the adoption of children, and, in connection therewith, making an appropriation. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 19-5-305, repeal and reenact, with amendments, (1), (1.5), and (2); and add (6) as follows: 19-5-305. Access to adoption records - contact with parties to adoption - contact preference form and updated medical history statement - definitions. (1) Confidentiality. All adoption records are confidential from the general public and must remain confidential except as described in subsections (1.5) and (2) of this section or upon demonstration of good cause pursuant to section 19-1-309 or as otherwise provided by law. (1.5) Contact preference forms and updated medical history statements from birth parents. (a) The state registrar shall prescribe and make available to a birth parent named on an original birth certificate in the records of the state registrar a contact preference form on which the birth parent may indicate a preference regarding contact by the adult adoptee, an adult descendant of the adoptee, or a legal representative of the adoptee or descendant. The purpose of the contact preference form is to allow the birth parent the opportunity to indicate a preference to be contacted directly, to be contacted through a third party, or not to be contacted by other parties. (b) The form must also include space for a written statement by the birth parent, which may include updated medical history about the birth parent or other biological relatives, an explanation for the stated contact preference, or other information for the party seeking records. The medical history statement form must indicate that the birth parent is waiving confidentiality of any medical information supplied in the statement with respect to the adoptee, an adult descendant of the adoptee, or a legal representative of such individual, and to the state registrar or his or her designees. (c) The state registrar shall maintain the contact preference form and the medical history statements, if any, and make them accessible to an individual who is an eligible party allowed to receive adoption records as described in subparagraph (I) of paragraph (b) of subsection (2) of this section and who submits a written application form, proof of identity, and an explanation of the individual's relationship to the adoptee, if applicable. The state registrar is authorized to verify the submission of a contact preference form or an updated medical history statement and to provide a copy of a contact preference form to a confidential intermediary appointed pursuant to section 19-5-304 or to a designated employee of a child placement agency who is searching pursuant to subparagraph (III) of paragraph (b) of subsection (3) of this section. The state registrar shall maintain and make available to the public accurate statistics about the number of contact preference forms on file with the state registrar and how many of the forms state a preference for contact, no contact, or contact through a third party. (d) (I) As used in this section, "eligible party" means a person who is eligible under subparagraph (I) of paragraph (b) of subsection (2) of this section to have access to adoption records. (II) The option on the contact preference form that allows a birth parent to authorize or not authorize the release of the original birth certificate to eligible parties expires on January 1, 2016. The state registrar shall revise the contact preference form to eliminate this option, effective January 1, 2016, and shall neither distribute nor accept contact preference forms on or after January 1, 2016, that contain an option regarding such release. On and after January 1, 2016, contact preference forms shall only address a birth parent's preferences regarding contact and the ability to submit an explanation for the stated contact preference and to submit or update medical history. A child placement agency is not liable to any person for the failure of a birth parent to submit a contact preference form to the state registrar. On and after July 1, 2014, the state registrar shall post a notice on the web site of the office of the state registrar of vital statistics stating that the contact preference form will be revised to eliminate the option to authorize or object to the release of the original birth certificate and that birth parents may exercise this option prior to January 1, 2016. (III) Prior to allowing access to and providing a copy of an original birth certificate to an eligible party, the state registrar must perform a diligent search for a contact preference form executed prior to January 1, 2016, to ascertain if either birth parent had stated a preference authorizing or not authorizing the release of the original birth certificate to eligible parties. If both birth parents have filed a contact preference form executed prior to January 1, 2016, stating a preference to authorize the release of the original birth certificate, then the state registrar must release the original birth certificate to the eligible party. If there is no contact preference form on file prior to January 1, 2016, from a birth parent named on the original birth certificate, or if a contact preference form executed prior to January 1, 2016, is on file that states a preference that the original birth certificate not be released, then the state registrar may not release the original birth certificate to the eligible party prior to January 1, 2016, unless the birth parent rescinds the contact preference form, upon mutual consent of two or more reunited parties, the birth parent is deceased, or the eligible party obtains a court order pursuant to section 19-1-309. When one birth parent has authorized the release of the birth certificate and the other birth parent has filed a contact preference form prior to January 1, 2016, not authorizing release, the state registrar shall issue the original birth certificate to the eligible party with the name of the nonconsenting parent redacted. (2) Legislative declaration - access to adoption records. (a) The general assembly takes note that the law in Colorado regarding access to adoption records has treated persons differently depending upon the law in effect upon the date of the adoption of the adoptee and that the statutory scheme has been confusing, complicated, and ambiguous. By repealing and reenacting provisions of this section to remove those varying time periods and varying levels of access or nonaccess to adoption records by an adult adoptee or by a birth parent, it is the intent of the general assembly that access to adoption records no longer be dependent upon the law in effect on the date of the finalization of adoption. The general assembly declares that the purpose of the revision of this subsection (2) is to make the access to adoption records by members of the adoption triad more uniform as outlined in this subsection (2). The general assembly further declares that it is the intent of the general assembly to not abrogate, limit, or change the holding in or affect any rights created under In re J.N.H.,209 P.3d 1221 (Colo. App. 2009) with respect to access by an adult adoptee to the names of his or her birth parents and to all court records and papers regarding the adoption of the adult adoptee. The general assembly further declares that in construing this section, the courts should liberally construe this section in favor of releasing the records. (b) Subject to the provisions of subsection (4) of this section and in addition to information exchanged in a designated adoption or inspection authorized by a court upon good cause shown pursuant to section 19-1-309, access to adoption records by certain parties is governed by the following provisions: (I) Adult adoptees, their descendants, and adoptive family members. Upon request, the custodian of records shall provide direct access to all adoption records, as defined in section 19-1-103 (6.5), for inspection and copying by an adult adoptee, an adoptive parent of a minor adoptee, a custodial grandparent of a minor adoptee, or the legal representative of any such individual. In addition, the custodian of records shall provide direct access to adoption records for inspection and copying by a spouse of an adult adoptee, an adult descendant of an adoptee, an adult sibling or half-sibling of an adult adoptee, an adoptive parent or grandparent of an adult adoptee, or the legal representative of any such individual, if the individual requesting access has the notarized written consent of the adult adoptee or if the adult adoptee is deceased. (II) Access by a birth parent to the original birth certificate. A birth parent who relinquished a child for adoption, whose termination of the parent-child legal relationship was not the result of a dependency and neglect action, and who signed or is named on the original birth certificate may apply to the state registrar for and obtain a noncertified copy of the unaltered original birth certificate of the child he or she relinquished if the child was born in this state, or if the child's adoption was finalized in this state, or both. (III) (A) Access to death certificates of deceased parties. Upon request of an eligible party or a birth parent as described in subparagraph (II) of this paragraph (b), the state registrar shall conduct a search of death certificates to determine whether an adoptee or a birth parent is deceased. If the state registrar finds a death certificate for the adult adoptee or the birth parent, then the state registrar shall provide a copy to the eligible party. The state registrar may collect a fee for conducting a search and for making a copy of the death certificate. (B) Access to records pertaining to a deceased party. If an eligible party or a birth parent as described in subparagraph (II) of this paragraph (b) applies to a custodian of records for access to records about an adult adoptee or a birth parent and the custodian of records determines that the person whose records are being sought is deceased or can reasonably be presumed to be deceased based on the known or estimated date of birth of the sought party, the custodian of records shall provide direct access to the records for inspection and copying by the eligible party. (IV) Proof of identification and fees. Prior to releasing any records to any eligible party allowed to receive records pursuant to this subsection (2), the custodian of records must require the eligible party requesting access to provide proof of identification. The custodian of records may charge reasonable fees for providing copies of records. The state registrar shall transmit all moneys collected pursuant to subparagraph (III) of this paragraph (b) and this subparagraph (IV) to the state treasurer, who shall credit the same to the vital statistics records cash fund created in section 25-2-121, C.R.S. (V) Release of records by child placement agencies and prior written statements of birth parents. Notwithstanding the provisions of subparagraph (I) of this paragraph (b), the adoption records, as defined in section 19-1-103 (6.5) (a), in the possession of a child placement agency may not be open for inspection or made available for copying with respect to any identifying information concerning a birth parent if the birth parent has previously provided the court and the child placement agency, if applicable, with a signed and notarized written statement, within three years after the final order of relinquishment or termination of the parent-child legal relationship, specifying that such parent wishes the identifying information concerning that parent to remain confidential; except that the adoption records in the possession of a child placement agency may be open for inspection and made available for copying with respect to identifying information concerning a birth parent if a birth parent provides a consent form, as defined in section 19-1-103 (28.5), to the child placement agency consenting to the release of identifying information and the release of identifying information is consistent with the provisions of subsection (3) of this section. A written statement specifying that a birth parent wishes the identifying information concerning that parent on file with a child placement agency to remain confidential must remain in the court's and the child placement agency's relinquishment or termination file unless later withdrawn by the parent or superceded by a consent form. A child placement agency is not liable to any individual for the failure of a birth parent to submit such a written statement to the court. In addition to such a statement, the birth parent may also submit to the court and to the child placement agency a letter of explanation that the court and the child placement agency must release to the adoptee at the time that the adoptee makes a request for inspection of the adoption records. This subparagraph (V) applies only to adoption records in the possession of child placement agencies and does not apply to adoption records in the possession of the court or any other agency, entity, or person. (6) Contact between the parties. Subject to the provisions of subsection (2) of this section, any party may seek to make direct contact with another party or to use the services of a confidential intermediary as provided in section 19-5-304, a licensed child placement agency as provided in subsection (3) of this section, or the voluntary adoption registry maintained by the state registrar as provided in section 25-2-113.5, C.R.S. SECTION 2. In Colorado Revised Statutes, 19-1-103, amend (28.7); and add (35.3) as follows: 19-1-103. Definitions - repeal. As used in this title or in the specified portion of this title, unless the context otherwise requires: (28.7) (a) "Contact preference form" means a written statement signed by a birth parent indicating whether the birth parent prefers future contact with an adult adoptee, an adult descendant of the adoptee, or a legal representative of the adoptee or the descendant and, if contact is preferred, whether the contact should be through a confidential intermediary or a designated employee of a child placement agency. (b) (I) A contact preference form includes an option for a birth parent to authorize the release of an original birth certificate. (II) This paragraph (b) is repealed, effective January 1, 2016. (35.3) (a) "Custodian of records", as used in section 19-5-305 (1.5) and (2), means any of the following individuals or entities that have custody of records relating to the relinquishment or adoption of a child: (I) A court; (II) A state agency; or (III) The legal agent or representative of any entity described in subparagraphs (I) and (II) of this paragraph (a). (b) "Custodian of records", as used in section 19-5-305 (1.5) and (2), does not include a licensed child placement agency. SECTION 3. In Colorado Revised Statutes, 19-5-103, amend (2) (g) as follows: 19-5-103. Relinquishment procedure - petition - hearings. (2) The counseling specified in paragraph (a) of subsection (1) of this section and provided by the department or the child placement agency shall include, but not be limited to, the following: (g) The confidentiality of all information, except for nonidentifying information as defined in section 19-1-103 (80) that may be accessed as provided in part 4 of this article, obtained by the department and the child placement agency in the course of relinquishment counseling unless the parent provides written permission or a release of information is ordered by a court of competent jurisdiction and except for a copy of an original birth certificate that may be obtained by an adult adoptee, adult descendant of an adoptee, or a legal representative of the adoptee or descendant as authorized by section 19-5-305. The counseling shall also include notice that a birth parent has the opportunity to file a written statement specifying that the birth parent's information remain confidential, an explanation of the rights and responsibilities of birth parents who disagree about consent as set forth in section 19-5-305, (2), and notice that a birth parent has the opportunity to sign and submit a contact preference form and updated medical history statements to the state registrar as set forth in section 19-5-305 (1.5). SECTION 4. In Colorado Revised Statutes, 19-5-301, amend (1) as follows: 19-5-301. Legislative declaration. (1) The general assembly hereby finds and declares that adult adoptees, adoptive parents, biological parents, and biological siblings should have a qualified right of access to any certain records regarding their or their child's adoption or the adoption of their offspring or siblings as outlined in section 19-5-305 and that such a qualified right must coexist with the right of such parties to privacy and confidentiality. The general assembly also finds that an adult adoptee, his biological or adoptive parent, or his biological sibling may desire to obtain information about each other at different points in time. Furthermore, the general assembly finds that confidentiality from the general public is essential to the adoption process and that any procedure to access information which relates to an adoption to search for unknown relatives through a confidential intermediary or a licensed child placement agency must be designed to maintain confidentiality and to respect the wishes of all involved parties. SECTION 5. In Colorado Revised Statutes, 19-5-304, repeal (2) (b) (III) as follows: 19-5-304. Confidential intermediaries - confidential intermediary services. (2) (b) The court-appointed confidential intermediary shall make a diligent search of the adoption records and post-adoption records in an effort to find the sought-after relative. If the confidential intermediary successfully locates the relative sought, the confidential intermediary shall provide that relative with the opportunity to: (III) Consent to or refuse to authorize disclosure of the adoption records to the person seeking such access. SECTION 6. Appropriation. In addition to any other appropriation, there is hereby appropriated, out of any moneys in the vital statistics records cash fund created in section 25-2-121 (2) (b) (I), Colorado Revised Statutes, not otherwise appropriated, to the department of public health and environment, for the fiscal year beginning July 1, 2014, the sum of $34,120 and 0.6 FTE, or so much thereof as may be necessary, to be allocated to health statistics and vital records for the implementation of this act as follows: personal services $28,847 and 0.6 FTE operating expenses 5,273 SECTION 7. Effective date - applicability. This act takes effect July 1, 2014, and applies to requests for access to adoption records on or after said date. SECTION 8. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety. ____________________________ ____________________________ Morgan Carroll Mark Ferrandino PRESIDENT OF SPEAKER OF THE HOUSE THE SENATE OF REPRESENTATIVES ____________________________ ____________________________ Cindi L. Markwell Marilyn Eddins SECRETARY OF CHIEF CLERK OF THE HOUSE THE SENATE OF REPRESENTATIVES APPROVED________________________________________ _________________________________________ John W. Hickenlooper GOVERNOR OF THE STATE OF COLORADO