In re the Adoption of Infant Sherman

49 V.I. 452, 2008 WL 2368797, 2008 V.I. Supreme LEXIS 16

• Court: Supreme Court of The Virgin Islands
• Decided: June 2, 2008
• Docket: S. Ct. Civ. No. 2007-044
• Status: Published

Opinions

HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice.

OPINION OF THE COURT

(June 2, 2008)

This appeal concerns an adoption that took place in 1969. In the instant proceedings, the adoptee’s biological mother, L.C.F., (“Appellant”) petitioned the trial court, ex parte, to unseal the adoption records. Appellant contended that she needed identifying information in the records to contact the adoptee, identified as Infant Sherman. According to Appellant, she desired to “bequeath her estate to her son,” and “very much would like the opportunity to meet with her only child.” (App. at 5.) Upon weighing the potential harms and benefits to the interested parties and concluding that Appellant did not show good cause for unsealing the records, the trial court denied the petition. Appellant moved for reconsideration, asserting for the first time that the trial court should have appointed a guardian ad litem to ascertain the respective interests of the parties to the adoption before determining whether good cause existed. Appellant also proffered for the first time an affidavit from a psychologist who opined that the trial court’s refusal to unseal the adoption records was contrary to a prevailing trend toward greater transparency in adoption proceedings. The trial court denied Appellant’s motion for reconsideration, and this appeal ensued. On appeal, we must determine whether the trial court erred in failing to appoint a guardian ad litem and whether the court abused its discretion in denying the motion for reconsideration. For the reasons which follow, the trial court’s order will be affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY

The trial court’s determination of whether to unseal Infant Sherman’s adoption records was governed by title 16, section 145(c) of the Virgin Islands Code, which provides:

The original birth record of the adopted child, and all records or files in the custody of any governmental agency or of the court relating to any proceedings under this chapter shall be sealed and thereafter shall not be open to inspection by any person other than the adopted person (if he has attained majority and is not incompetent), except upon the order of the court for good cause shown.

In determining whether good cause existed in this case, the trial court balanced four factors: “(1) the actual or potential interests of the adoptee; (2) the actual or potential interests of the adoptive parent(s); (3) the actual or potential interests of the biological parent(s); and (4) the impact the request would have on the overall purpose, integrity and viability of the adoption system.” In re Adoption of Sherman, 48 V.I. 221, 225 (V.I. Super. Ct. 2007). In conducting this analysis, the trial court ruled that “[wjhere the party is a participant in the proceeding the Court shall consider the actual interests represented. Likewise, where the party is absent from the proceeding, the Court will contemplate the potential interests of the party and assess the relative risks posed to those interests in considering the request.” Id. (emphasis in original). Because neither the adoptive parents nor the adoptee were parties to the underlying proceeding, the court only spoke to the respective potential interests of these parties. Upon balancing those potential interests, and the actual interests of Appellant, the biological mother, the court concluded that “the life-changing risks that exist substantially outweigh Petitioner’s most benevolent intentions. In making this finding, the Court relies heavily upon the fact that Infant Sherman has never appeared here to learn about Petitioner.” Id. at 232.

In her motion for reconsideration, Appellant did not challenge the trial court’s ruling that it would consider the four interests enumerated in the order. Instead, Appellant complained that the trial court did not, sua sponte, exercise its equitable powers to appoint a guardian ad litem to investigate the actual interests of the adoptive parents and Infant Sherman, both of whom were absent from the proceedings. In support of this argument, Appellant presented the trial court with academic literature and a psychologist’s opinion that were not presented with the original petition. The trial court denied the motion for reconsideration, finding that Appellant sought to

raise new arguments that were not proffered in her original pleading and accordingly were not discussed in the court’s opinion. She claims that the court’s suppositions failed to consider a plethora of academic and psychological data. This data was not part of Petitioner’s original pleading and her dissatisfaction with the court’s findings does not merit entirely new review of her request.

(App. at 79.)

On appeal, Appellant again asserts that the trial court erred in failing to appoint a guardian ad litem to ascertain whether good cause existed to unseal the adoption records. According to Appellant, under section 145(c), the Legislature left it up to the trial court to fashion a methodology for determining good cause, and the best way to determine the actual interests of absentee parties is to appoint a guardian ad litem. Accordingly, Appellant argues, the trial court in this case erred in failing to appoint a guardian ad litem to discover the actual interests of the absentee adoptive parents and Infant Sherman. In a separately assigned error, Appellant points to academic literature and her psychologist’s affidavit and asserts that the trial court erred in failing to appoint a guardian ad litem because “the history of adoption laws is misrepresented by judicial precedent” which warranted change by the court.¹ (Appellant’s Br. 2.) Appellant contends that she did not present her expert’s affidavit or urge the trial court to appoint a guardian ad litem in her initial petition because the issue of what constitutes “good cause” was a matter of first impression. Thus, Appellant asserts, her motion for reconsideration “was a necessary response to a newly created law.” (Appellant’s Br. 18.) Likewise, Appellant contends that she had no way of knowing that “the [trial] Court would fail to consider other noninvasive alternatives” such as the appointment of a guardian ad litem. (Appellant’s Br. 18.)

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a final order of the trial court pursuant to title 4, section 32 of the Virgin Islands Code. Because Appellant’s assertion that section 145(c) required the trial court to appoint a guardian ad litem is a legal question, we conduct a plenary review of that assigned error. See Edwards v. HOVENSA, LLC, 497 F.3d 355, 362-63 (3d Cir. 2007). The trial court’s denial of Appellant’s motion for reconsideration is generally subject to review for an abuse of discretion, except to the extent that the ruling was based on an interpretation and application of a legal precept, in which case our review is plenary. Le v. Univ. of Pa., 321 F.3d 403, 405-406 (3d Cir. 2003).

III. DISCUSSION

Our starting point in determining whether the trial court erred in failing to appoint a guardian ad litem to facilitate its good cause determination under section 145(c) is the language of the statute itself. This is because in construing a statute, ‘“[i]f the intent of [the Legislature] is clear, that is the end of the matter.’” Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S. Ct. 2151, 2157, 124 L. Ed. 2d 368 (1993) (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 2781, 81 L. Ed. 2d 694 (1984)). Section 145(c) does not expressly provide for the appointment of a guardian ad litem in determining whether there is good cause to unseal adoption records. See 16 V.I.C. § 145(c). Indeed, had the Legislature intended to provide for the appointment of an intermediary such as a guardian ad litem, as many states have, it could have easily done so in the statutory scheme. See generally, Shannon Clark Kief, Annotation, Restricting Access to Judicial Records of Concluded Adoption Proceedings, 103 A.L.R.5TH 255 (2002) (noting that 19 states use confidential intermediary services to search for parties and determine whether they consent to the release of information).

More importantly, however, it is clear that section 145(c) prohibits the appointment of a guardian ad litem to determine whether there is good cause to unseal adoption records. In this regard, section 145(c) prohibits “any person,” except the adoptee, from inspecting sealed adoption records “except upon the order of the court for good cause shown.” Clearly, a guardian ad litem is “any person” under the statute, and as such may not inspect adoption records unless good cause is first shown. Under these circumstances, a trial court may not, as argued by Appellant, appoint a guardian ad litem for the purpose of determining whether good cause exists. Such an appointment would put the proverbial cart before the horse: unsealing the adoption records before good cause has been shown. Accordingly, we conclude that the trial court did not err in failing to appoint a guardian ad litem to facilitate its good cause determination under title 16, section 145(c) of the Virgin Islands Code.

In reaching this conclusion we do not rule that a trial court may never appoint a guardian ad litem to serve as an intermediary where a biological mother seeks to establish contact with the adopted child. Our ruling here is simply that the trial court must make the requisite finding that good cause has been shown to unseal the adoption records before an intermediary is permitted to inspect those records. If such an intermediary is to be used in establishing whether the requisite good cause exists to unseal the records in the first instance, as Appellant urges in this case, then the Legislature must act to provide such assistance. That remedy, however, is beyond the purview of the existing legislation.

We next turn to the assertion that the trial court abused its discretion in refusing to appoint a guardian ad litem in response to Appellant’s motion for reconsideration. To the extent that Appellant argues that the trial court abused its discretion, on reconsideration, in refusing to appoint a guardian ad litem to facilitate the good cause finding, this argument was addressed and rejected above. Appellant’s only other basis for contending that the trial court erred in denying her motion for reconsideration is that “the history of adoption laws is misrepresented by judicial precedent” which warranted change by the trial court. (Appellant’s Br. 2.) Appellant presumably believes that these changing attitudes toward greater transparency in adoption proceedings required the trial court to appoint a guardian ad litem in this case.

Motions for reconsideration must be based on: “(1) [an] intervening change in controlling law; (2) [the] availability of new evidence, or; (3) the need to correct clear error or prevent manifest injustice.” LRCI 7.4.² A motion for reconsideration is not a second bite of the apple, but

is intended to focus the parties on the original pleadings as the “main event,” and to prevent parties from filing a second motion with the hindsight of the court’s analysis covering issues that should have been raised in the first set of motions. It is not a vehicle for registering disagreement with the court’s initial decision, for rearguing matters already addressed by the court, or for raising arguments that could have been raised before but were not. In short, Local Rule 7.4 affirms the common understanding that reconsideration is an “extraordinary” remedy not to be sought reflexively or used as a substitute for appeal.

Bostic v. ATT of the V.I., 312 F. Supp. 2d 731, 733, 45 V.I. 553 (D.V.I.2004); see also Pittston Co. Ultramar Am. Ltd. v.Allianz Ins. Co., 124 F.3d 508, 519 n. 12 (3d Cir. 1997) (noting that “‘[cjourts often take a dim view of issues raised for the first time in post-judgment motions’” (citation omitted)); Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (“[A] motion for reconsideration should not be granted, absent highly unusual circumstances... [and] may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation.” (emphasis in original, quotation marks and citation omitted)); Gov’t of the V.I. v. Innovative Commc’ns Corp., 215 F. Supp. 2d 603, 610 (D.V.I. 2002) (‘“[A] motion for reconsideration is not the proper forum for raising new legal arguments or theories which could have been addressed initially, and the court need not address such arguments.’” (citation omitted)).

Without belaboring the point, if Appellant wanted the trial court to consider her policy arguments, psychologist’s affidavit, and the related literature as evidence of the need of the trial court to appoint a guardian ad litem in response to the changing attitudes toward adoption proceedings, she should have presented that argument and evidence with her original petition. See Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (“Where evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration.” (citation omitted)); Kona Enters., 229 F.3d at 890; Innovative, 215 F. Supp. 2d at 610. She failed to do so. Accordingly, the trial court did not abuse its discretion in refusing to appoint a guardian ad litem based on Appellant’s untimely arguments and evidence. See Pittston, 124 F.3d at 519 n.12; Innovative, 215 F. Supp. 2d at 610. Finally, notwithstanding the merits vel non in Appellant’s arguments favoring the appointment of an intermediary to facilitate a trial court’s good cause determination, the judiciary is the wrong audience for those arguments. This Court cannot create such a requirement where the Legislature has plainly chosen not to act. See generally, In re Kaiser Aluminum Corp, 456 F.3d 328, 346-47 (3d Cir. 2006) (“‘[W]e do not sit here as a policy-making or legislative body.’ There are no clear answers to the difficult policy issues involved in this case and, in any event, their resolution is better left to Congress than the courts. We have taken Congress’s failure to provide a shred of guidance on how to apply a planby-plan approach as indicative of its intent.” (citation omitted)). Appellant’s cure lies with the Legislature.

IV. CONCLUSION

The trial court in this case issued a comprehensive and well-reasoned opinion analyzing the good cause requirement and the basis for its ruling that Appellant had not shown good cause For unsealing Infant Sherman’s adoption records. This Court finds no merit in Appellant’s arguments that the trial court erred in failing to appoint a guardian ad litem to facilitate the trial court’s good cause determination. Likewise, we find no abuse of discretion in the trial court’s rejection of Appellant’s belated arguments and presentation of evidence in her motion for reconsideration. Accordingly, we will affirm the trial court’s judgment.

1 Appellant does not challenge the trial court’s use of the four factors enumerated above in determining whether good cause existed to unseal the records. Indeed, Appellant acknowledges that the trial court “properly crafted a law to assist in determining ‘good cause shown’ under the adoption statutes for unsealing records.” (Appellant’s Br. 2.)

2 The Local Rules of Civil Procedure of the Virgin Islands are applicable in the Superior Court of the Virgin Island to the extent that the Local Rules are not inconsistent with either procedural rales promulgated under the Virgin Islands Code or the Rules of the Superior Court. See Revised Organic Act § 21(c), 48 U.S.C. § 1611(c); Super. Ct. R. 7.