Opinion
NO. 2015-CA-0653
09-28-2016
Steven Mark Grishman, Sol Howard Grishman and Marylynn Daniels Wesson v. Darlene W. Smith, in Her Capacity as State Registrar, Registrar of Vital Records and Director of the Center of the State Registrar, Registrar & Vital Records
Scott J. Sonnier, 601 Poydras Street, Suite 2200, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT Neal R. Elliott, Jr., DEPARTMENT OF HEALTH AND HOSPITALS BUREAU OF LEGAL SERVICES, P. O. Box 3836, Baton Rouge, LA 70802-3836, COUNSEL FOR DEFENDANT/APPELLEE
Scott J. Sonnier, 601 Poydras Street, Suite 2200, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
Neal R. Elliott, Jr., DEPARTMENT OF HEALTH AND HOSPITALS BUREAU OF LEGAL SERVICES, P. O. Box 3836, Baton Rouge, LA 70802-3836, COUNSEL FOR DEFENDANT/APPELLEE
(Court composed of Judge Daniel L. Dysart, Judge Madeleine M. Landrieu, Judge Rosemary Ledet )
Daniel L. Dysart, Judge
Steven Mark Grishman, Sol Howard Grishman and Marylynn Daniels Wesson filed a petition for writ of mandamus seeking to have their respective birth parents' names restored to their birth certificates. The writ was directed to Darlene W. Smith, in her capacity as State Registrar of Vital Records and Director of the Center of State Registrar & Vital Records (“the State registrar”). Plaintiffs alleged that their original birth certificates were improperly and/or fraudulently altered after the state registrar was presented with notarial acts of adoption, to which plaintiffs claim they did not willingly acquiesce.
The trial court defined the issue before it as whether the Office of Vital Records, based upon the documents it received, i.e., notarial acts of adoption, had the legal authority to alter the plaintiffs' birth certificates. The trial court found that the applicable law (La. R.S. 40:201, as to Steven and Marylynn, and La. R.S. 40:75 , as to Sol), provided for the making of a record showing the date of the birth of the adopted person, the new name of the adopted person, if the name was changed in accordance with the law, and the names and addresses of the adoptive parents. The trial court dismissed plaintiffs' claims, with prejudice, holding that the State registrar Office of Vital Records was not the proper defendant in this matter. Plaintiffs appeal.
La. R.S. 40:201 was redesignated as La. R.S. 40:75 by Acts 1976, No. 352, § 1.
BACKGROUND:
Plaintiffs, Steven Mark Grishman and Sol Howard Grishman, testified that they suffered great abuse at the hands of their now deceased father, Sidney (a/k/a Schaje) Wolf Grishman. Steven explained that after their birth mother, Barbara Winn, and their father divorced, their father married Carole Horton Grishman.
Steven Grishman testified that while he does not dispute that the signature on the act of adoption appears to be his, he had no recollection of ever signing the document. He did, however, recall being threatened or coerced into signing blank pieces of paper on several occasions. He neither knew the attorney who signed the act of adoption as the notary, nor two witnesses named on the document. He did recall that his step-mother, Carole, worked for the attorney who notarized the act of adoption.
Sol Grishman testified that the signature above his name on the act of adoption was not his, although he knew that his father had forged his signature on other occasions. Specifically, his father forged his name on a document for Sol's personal bank account, and withdrew all of the funds for his own use.
Marylynn Wesson Daniels testified that she did remember signing an act of adoption, but that she did not do so willingly. She remembered Sidney Grishman telling her that he wanted the name “Daniels” to be removed from the household.
Although Marylynn's surname was changed on the newly issued birth certificate, she did not use the name Grishman as her maiden name.
All of the plaintiffs were majors when the acts of adoption were finalized and filed with the State registrar. New birth certificates were issued for each plaintiff. Steven Grishman's new certificate no longer contained the name of his birth mother, Barbara Winn, but listed Carole Medora Horton as his birth mother. The same changes were made to Sol Grishman's birth certificate. Marylynn Daniels' birth certificate was changed, removing her birth father's name, Howard McKinnon Daniels, Jr., and substituting Schaje Wolf Grishman as her birth father.
The signing of the acts of adoption , the recordation with the State registrar, and the issuance of new birth certificates all took place several decades prior to the filing of the Petition for Writ of Mandamus, which was filed May 23, 2012.
Act of Adoption of Steven Mark Grishman, d/o/b 11/2/57, executed on April 22, 1976; Act of Adoption of Sol Howard Grishman, d/o/b 8/31/59, executed on November 20, 1978; Act of Adoption of Marylynn Medora Daniels, d/o/b 8/12/56, executed on December 10, 1974.
As stated previously, the trial court ruled in favor of the State registrar, dismissing plaintiffs' claims, with prejudice. The trial court explained in its written reasons for judgment that the issue to be decided was whether the Office of Vital Records had properly changed plaintiffs' birth certificates upon receipt of the acts of adoption. The court found that plaintiffs failed to meet their burden of proving that the documents upon which the defendant relied were insufficient according to the law at the time the adoption papers were filed and the new birth certificates issued.
The court found that the acts of adoption were proper on their face, and, therefore, the State registrar did not err in issuing new birth certificates. The trial court also stated that this defendant was not a proper party to carry out the actions demanded in the petition for writ of mandamus.
DISCUSSION:
Plaintiffs raise three assignments of error: 1) The district court erred in finding that the state registrar was not the proper party to direct a writ of mandamus under these circumstances; 2) The district court erred in not ordering the state registrar to correct the erroneously issued “new” birth certificates, and restore them as originally issued; and 3) The district court erred in not annulling the acts of adoption and ordering the birth certificates restored.
Louisiana Code of Civil Procedure art. 3861 defines mandamus “as a writ directing a public officer ... to perform any of the duties set forth in Articles 3863 and 3864.” Pursuant to La. Code Civ. Proc. art. 3863, which applies in this case, the writ is directed “to compel the performance of a ministerial duty required by law, ...” A writ of mandamus is “an extraordinary remedy, to be applied where ordinary means fail to afford the adequate relief.” Dynamic Constructors, L.L.C. v. Plaquemines Parish Gov't, 15–0271, p. 3 n. 2 (La.App. 4 Cir. 8/26/15), 173 So.3d 1239, 1242, writ denied , 15–1782 (La. 10/30/15), 178 So.3d 562, reconsideration denied, 15–1782 (La. 12/7/15), 180 So.3d 1289, citing A.M.E. Disaster Recovery Services, Inc. v. City of New Orleans, 10–1755, p. 8 (La.App. 4 Cir. 8/24/11), 72 So.3d 454, 459. The remedy “must be used sparingly ... to compel action that is clearly provided by law.” Dynamic Constructors, 15–0271 at p. 3, n. 2, 173 So.3d 1242, citing Hamp's Const., L.L.C. v. Hous. Auth. of New Orleans, 10–0816, pp. 3–4 (La.App. 4 Cir. 12/01/10), 52 So.3d 970, 973. “Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised.” Hamp's Const., 10–0816 at p. 4, 52 So.3d at 973.
At the time the acts of adoption were filed and the new birth certificates were issued for Steven Grishman and Marylynn Daniels, Louisiana Revised Statute 9:461 permitted any adult over the age of twenty to adopt another person age seventeen or older by simply executing an authentic act of adoption. At the time the act of adoption was filed for Sol Grishman, the age requirement of the adoptive parent(s) was over the age of eighteen. No court hearing was required.
Acts 1978, No. 714, § 2 reduced age for person to adopt a person over the age of seventeen from “above the age of twenty,” to eighteen years of age.
Further, the law in effect relative to recordation of adoptions and issuance of new birth certificates was La. R.S. 40:201 relative to Steven Grishman and Marylynn Daniels, and La. R.S. 40:75 relative to Sol Grishman.
Chapter 2 of Title 40 of the Louisiana Revised Statutes of 1950, which contained R.S. 40:201, was amended and reenacted by Acts 1976, No. 352, § 1 to contain R.S. 40:32 to 40:81.
Chapter 2 was amended and reenacted by Acts 1979, No. 776, § 1 to contain R.S. 40:32 to 40:79.
Plaintiffs argue that the pertinent statutes did not allow for alteration of their birth certificates. They rely on the title of the subject statutes as proof: “Record of adoptions prior to July 27, 1938,” to argue that at the time of their respective adoptions, there was no statutory authority to allow for changes to their birth certificates relative to the names of the adoptive parent(s). Therefore, plaintiffs argue that the state registrar was the proper party to which a writ of mandamus should be directed.
At oral argument, counsel for plaintiffs explained that Steven's and Sol's mother was still alive, and that they wished to have her name restored as birth mother on their certificates. No explanation was given for Marylynn, as she had never used Grishman as her surname, despite the change to her birth certificate.
After a careful and thorough review of the history of the respective statutes, we conclude that the law did allow for the changes.
Prior to 1938, there was no manner by which to record adoptions with a central state registrar registry. By Act 269 of 1940, it was required that “every person adopted prior to the effective date of Act 428 of 1938 [July 27, 1938] shall present to the Central Bureau of Vital Statistics his birth certificate, together with a certified copy of the final adoption decree [persons under 17] or notarial act of adoption [persons over 17].” The purpose of the Act was “causing a record to be made in the archives of the Central Bureau of the date of birth and the new name of the adopted, if such name has been changed, and the name and address of the adoptive parent or parents. ” (emphasis added.) Although the Act does not specifically state that the names of the adoptive parents should be substituted for the birth parents, the wording of the Act implies that this should occur, as the Act also provides for maintaining the original birth certificate under seal.
James A. Bugea, Carlos E. Lazarus, and William T. Pegues, The Louisiana Legislation of 1940 , 3 La. L. Rev. 98, 111 (1940).
Act 776 of 1979, changed the title of La. R.S. 40:75 to: “Notarial acts of adoption, requirement of affidavit from district attorney[.]” All reference to the names of the adoptive parents was deleted. Instead, the only reference to name change was that of the adopted person, providing that if the adopted person desired to have a new birth certificate issued, the district attorney of the parish in which the act was executed, would have to concur. This change in the law indicates that prior to its enactment the law provided for substitution of the adoptive parent(s) name(s) on the birth certificate of the adopted person. Thus, the State registrar had the authority to issue new birth certificates containing the names of the adoptive parents at the time it was done.
The only evidence presented at the trial of this matter was the testimony of the plaintiffs, the original birth certificates, the acts of adoption and the subsequently issued birth certificates. There is no evidence to indicate that the State registrar should not have accepted the acts of adoption as true and authentic, such that new birth certificates should not have issued. Furthermore, there was no evidence that plaintiffs have made any attempt to have their adoptions declared null on the basis of fraud or coercion.
As a writ of mandamus is to be employed only in situations where ordinary means have failed, we find that plaintiffs have not exhausted the ordinary means available to them to have their birth certificates changed. Additionally, the evidence submitted to the trial court was insufficient to support the issuance of a writ of mandamus to the state registrar to issue new birth certificates.
Accordingly, we affirm the judgment of the trial court in its entirety.
AFFIRMED
LANDRIEU, J., DISSENTS WITH REASONS
LANDRIEU, J., DISSENTS
I respectfully dissent from the opinion of the majority. I find that the State Registrar had no statutory authority, either under the current law or under the law as it existed at the time of these adoptions, to issue new birth certificates for these three plaintiffs, who were adopted by notarial act after each had attained the age of majority. For reasons explained more fully below, I would reverse the judgment of the trial court and grant the writ of mandamus directing the State Registrar to restore the birth certificates of all three plaintiffs to their original form and content, and directing the Registrar to strike the altered birth certificates from the vital records.
Steven and Sol Grisham were born to their father, Sydney (a/k/s Schaje) Wolf Grisham and their mother, Barbara Winn, in 1957 and 1959, respectively. After their parents divorced, Mr. Grishman married Carole Hartman. Ms. Hartman had one child, Marylynn Wesson Daniels, born in 1956, whose father is Howard McKinnon Daniels, Jr. Soon after Steven, Sol and Marylynn each attained the age of majority, a notarial act of adoption was executed resulting in each of the boys being adopted by their step-mother, Ms. Hartman, and Marylynn being adopted by her step-father, Mr. Grishman. These notarial acts were executed on December 10, 1974 (Marylynn); April 22, 1976 (Steven); and November 20, 1978 (Sol). Sometime after execution, each act was presented to the Office of Vital Records, which issued new birth certificates containing the adoptive parent's name instead of the birth parent's name. The revised birth certificates of the boys reflect that their mother is Carole Medora Hartman. Their birth names are not changed in any way. Marylynn's revised birth certificate indicates that her father is Schaje Wolf Grishman, and her name is changed from Marylynn Medora Daniels to Marylynn Medora Grishman.
The original birth records of all three plaintiffs were under seal until the trial court ordered that they be produced for these proceedings.
There is no question that the current law, which has been substantially the same since 1979, prohibits the State Registrar from making changes to original birth certificates and/or issuing new ones in cases such as those presented here.
The law relative to the adoption by notarial act of those over the age of seventeen is provided for in La. R.S. 9:465. The law relative to the adoption of children (those under the age of seventeen) is contained in Title XII of the Louisiana Children's Code. The manner in which the original birth certificates of all adoptees (children and adults) are recorded and/or amended following an adoption and the duty of the Registrar are governed by our laws relative to Vital Statistics. See, La. R.S. 40: 72–79. These vital statistic laws have remained substantially the same but have been re-arranged and re-numbered on numerous occasions over the years. I will first discuss current law, and will then turn to the law at the time of the adoption of each of the plaintiffs.
La. R.S. 40:75, entitled “Adult adoption; name changes” currently provides, in pertinent part:
A. Adult adoptions and name changes resulting from the adoptions pursuant to R.S. 9:465shall have no effect on birth certificates maintained by the Vital Records Registry , except that when a name change is effected pursuant to R.S. 9:465 and an affidavit is presented from the district attorney of the parish or place of residence of the requesting party indicating that there is no objection of the district attorney to the adoptee's name change along with a certified copy of the notarial act of adoption and the appropriate fee, the registrar of vital records shall prepare a new birth certificate to reflect the new name....
B. In such cases, the validity and civil effects of the notarial act of adoption are in no way affected and shall continue to be governed by the laws applicable thereto.
La. Rev. Stat. Ann. § 40:75 (Emphasis added).
This statute makes it clear that under the current law, the State Registrar is not authorized to issue a new birth certificate in an adult adoption by notarial act except when there is a request that the name of the adoptee be changed and the Registrar is presented with an affidavit of the district attorney indicating he has no objection to the name change. Of the three acts of adoption presented here, only Marylynn's notarial act provided that her name would be changed; the names of the two male plaintiffs were not changed, either in their notarial acts of adoption or on their new birth certificates. Marylynn's last name was changed on her new birth certificate from Daniels to Grishman, although there is no evidence of an affidavit from any district attorney approving such a name change. Even when the requirements for changing an adoptee's name have been met and a new birth certificate can be issued, however, La. R.S. 40:75 does not allow for the names of the adoptee's parents to be changed. Accordingly, under current law, the Registrar was without authority to alter the birth certificates of the three plaintiffs' in this case and place their original certificates under seal.
Marylynn testified that she never used the last name of Grishman.
The law regarding the duty of the Registrar in adult adoptions by notarial act is in clear contrast to the law regarding its duty relative to the adoption of children. In the latter instance, the law provides for the making of a “new certificate of live birth,” allows for the recording of the names of the adoptive parents, and provides for the sealing of the original birth certificate. See La. R.S. 40:79.
In its written Reasons for Judgment, the trial court framed the issue before it as follows: “[W]hether the Office of Vital Records, based upon the documents it received and reviewed—namely the Notarial Acts of Adoption—had the legal authority to alter plaintiffs' birth certificates. This issue turns on what the law was at the time of the adoptions .” (Emphasis added). The trial court determined that at the time of Marylynn and Steven's adoptions (1974 and 1976), the applicable law was found in La. R.S. 40:201, and at the time of Sol's adoption (1978), the applicable law was found in La. R.S. 40:75, which had the same provisions as the former La. R.S. 40:201, but had, in the interim, been renumbered. The trial court then concluded that these statutes authorized the Office of Vital Records, when presented with a notarial act of adoption, to “make a record showing the date of birth of the person adopted; the new name of the person adopted if his name was changed in accordance with the law; and the names and addresses of the adoptive parents.” I find that neither of these provisions applies in the circumstances presented here.
Neither the plaintiffs nor the Registrar address whether the current law should be applied retroactively or whether the law at the time of the adoptions controls. Because I find that both current law and the law at the time of the adoptions demand the same result, I do not address that issue.
See Act 352 of 1976.
La. R.S. 40:201, as it existed from 1965 until 1976, and La. R.S. 40:75, as it existed from the reorganization of Louisiana's vital statistics laws in 1976 through 1979, were each entitled “Record of adoptions prior to July 27, 1938.” Each provided for the making of such a record only “[w]hen any person, who adopted prior to July 27, 1938 ...presents the original or a certified copy of the birth certificate of the adopted person and a certified copy of a final judgment decreeing the adoption or the notarial act of adoption....” None of the three plaintiffs were adopted prior to 1938. At the time of their adoptions between 1974 and 1978, the law was silent as to the effect an act of notarial adoption had on the vital records. Indeed, the State Registrar was unable to direct the trial court or this court to any statute, either currently in effect or in existence at the relevant time, which would have granted his agency the authority to alter the birth certificates of these plaintiffs.
Devin George, the State Registrar at the time of trial, testified that, prior to 1983, it was the practice of his agency to issue new birth certificates with the adoptive parents' names in cases of adult adoptions by notarial act (just as the agency did in adoptions of children). Mr. George could not identify a specific statute that authorized this practice for adult adoptions; he acknowledged, however, that it would be error for the Registrar to alter birth certificates without statutory authorization. Mr. George further testified that the agency stopped altering the birth certificates in adult notarial adoptions in 1983 because the legislature passed a law that prohibited the agency from doing so.
See Act 491 of 1983, explained more fully infra .
A review of the legislative history indicates that from 1974-1978, when these adoptions occurred, there was no statutory provision that addressed the handling of vital records in adult adoptions by notarial act. There was however, a provision for the handling of vital records in adoptions that had occurred prior to July 7, 1938. From 1974-1976, that provision was La. R.S. 40:201. In 1976, the legislature re-numbered the vital records statutes, at which time La. R.S. 40:201 became La. 40:75.
See Act 352 of 1976.
In 1979, the legislature enacted, for the first time, a provision addressing the handling of vital records in adult adoptions by notarial act. They placed this provision in La. R.S. 40:75 and moved the former substance of that statute (dealing with adoptions prior to July 27, 1938) into La. R.S. 40:72, where it remains today. The trial court erred here by applying La. R.S. 40:201 and its successor, La. R.S. 40:75, to these adoptions.
See Act 776 of 1979.
When first enacted, the 1979 version of La. R.S. 40:75 provided only that when a person over the age of seventeen is adopted by notarial act in which the adoptee's name is changed, the adoptee could request the Office of Vital records to issue a new birth certificate in his new name, but the request had to be accompanied by an affidavit from the pertinent district attorney stating that he had no objection to the name change. There was no authority for the Registrar to issue an amended birth certificate changing the names of the adoptee's parents. Then, in 1983, La. R.S. 40:75 was amended to include this sentence: “A new birth certificate shall not be originated based upon a notarial act of adoption.” The testimony of Mr. George indicates that it was this amendment that prompted the Office of Vital Records to stop its former practice of routinely issuing new birth certificates in cases of adult adoptions.
See Act 491 of 1983, referred to in footnote 6, supra . Interestingly, this sentence was then removed from the statute in 1991, possibly because it could have been read as prohibiting the Registrar from issuing new birth certificates in the case of a valid request for a name change of the adoptee. See Act 630 of 1991.
As there was, quite simply, no authority in the law at the time these plaintiffs' birth records were changed for the Office of Vital Records to have so changed them, the trial court committed legal error by declining to grant the petition for a writ of mandamus ordering the State Registrar to restore the birth records to their original state.
The plaintiff's petition seeks only to have their birth records restored, not to have their adoptions annulled. However, as noted by the majority, the plaintiffs did present evidence at trial to show that their adoptions were procured by fraud or coercion, and each plaintiff denied having validly consented to his or her notarial act of adoption. In its written reasons for dismissing the plaintiffs' claims, the trial court stated:
Paragraph 4 of their petition states: “This action seeks to correct the birth certificates which were improperly and/or fraudulently altered to change the name of the plaintiff's [sic] mother and father.” In the final paragraph of the petition, the plaintiffs' request that “this Court order a Writ of Mandamus commanding the State Registrar and Director of Vital Records Registry to correct the improper alteration to the plaintiffs' birth certificates.”
The Office of Vital Records is not required to delve into the circumstances surrounding the signatures on the documents presented to them. Rather, the Office of Vital Records can only review the records submitted to determine if on their face, they meet the requisites of law needed to alter a birth certificate. In this case, all three of the Acts of Adoption appear proper on their face. Therefore, they were accepted by [the] Office of Vital Records and plaintiffs' birth certificates were altered.”
The plaintiffs do not dispute the facial validity of the notarial acts of adoption, only the Registrar's authority to issue new, altered birth certificates based upon these acts. In the alternative to their argument that the Registrar lacked any legal authority to change the birth certificates based upon the notarial acts of adoption, the plaintiffs contended in the trial court that their adoptions were not valid due to fraud. Nevertheless, the plaintiffs did not seek any remedy other than the restoration of their birth certificates.
As the trial court did not rule upon the validity of the adoptions, that issue is not properly before us. I therefore make no finding with regard to whether or not the adoptions are valid, whether the Office of Vital Records would be a proper defendant to a nullity action, or whether the trial court had all the necessary parties before it to consider such an action. The record does not support a finding that the plaintiffs were pursuing a ity action. Whether they were or were not, their adoptions need not be declared for them to obtain the relief they seek.
For these reasons, I would reverse the judgment of the trial and grant the writ of mandamus.