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Wrongful
Adoption: Litigation/Practice Issues(1)
Madelyn Freundlich, The Evan B.
Donaldson Adoption Institute
Lisa Peterson, Spence-Chapin
Services to Families and Children
Introduction
Over the last decade,
adoption agencies have confronted issues related
to obtaining and disclosing information to
prospective adoptive families about the health
and social background of children and their
birth families. Quality practice supports the
sharing of such information. Litigation related
to this issue has shown, however, that in a
number of cases, adoption agencies and
independent practitioners have failed to provide
prospective adoptive families with known
information about a child's physical, emotional
or developmental problems or with critical
background information about the child's birth
family and history. In these cases, adoptive
families, deprived of such information, have
found themselves neither emotionally nor
financially prepared to care for a child whose
needs require enormously expensive medical or
mental health treatment. Some of these families
have sought redress in the courts.
Wrongful adoption is a
cause of action based on, as its name implies, a
wrong. Typically, the plaintiffs -- adoptive
parents -- claim that they were wronged by
agencies which failed to provide them with their
child's full background information; that in
doing so, the agency deprived them of the
opportunity to make an informed decision as to
whether to proceed with the adoption; and they
were harmed as a result [that is, suffered
financially, physically, or emotionally].
In response to
litigation initiated by adoptive families,
courts have recognized a duty to disclose known
material information about a child's health and
social background to prospective adoptive
families. In the face of a breach of this duty
to disclose, courts have held agencies liable
for the tort of "wrongful adoption"
and awarded adoptive families monetary damages.
Although the duty to disclose applies to
agencies and independent practitioners alike,
most of the cases to date have involved
agencies. An agency's breach of the duty to
disclose can take many forms and, depending on
the state, liability may be imposed when
agencies misrepresent a child's background,
deliberately withhold information, or are
negligent in providing prospective adoptive
parents with information that could be material
to their decision whether to adopt a particular
child.
While courts have
provided a legal remedy when adoptive families
have been harmed by failures to disclose, state
legislatures have sought, through statute, to
define the disclosure obligations of adoption
practitioners to reduce the incidence of
"wrongful adoption" and facilitate
informed decision-making by adoptive families.
The Historical and Legal Context
The extent to which
prospective adoptive parents have had access to
health and other background information about
children has varied over time. During the first
half of the twentieth century, quality adoption
practice supported providing prospective
adoptive parents with all the facts in a child's
case record. Since the 1950s, however, social
work practice has been more reactive with regard
to this issue, changing in response to a variety
of factors, including psychoanalytic theory,
social mores, and the political climate of the
time. Adoption practitioners have witnessed the
pendulum swing from full disclosure to greater
secrecy and then back again to increased
disclosure. In summary, these trends can be
traced as follows:
Early 20th Century:
Background information on children placed for
adoption was openly disclosed
Mid 1950s: Background information was
selectively disclosed and often only
"positive" information was shared.
There were concerns that disclosure of
"negative" information would unduly
arouse adoptive parent anxiety and jeopardize
the success of the adoption.
Mid 1970s: More information [albeit
mainly non-identifying] was shared in response
to demands by adoption support, self-help, and
advocacy groups.
Mid
1990s: This era, characterized by
"talk shows" and "tell all"
books and easy technological access to
information via the Internet, has resulted in a
greater demand for information on all fronts. In
adoption practice today, more information is
shared and openness is more common.
The Benefits of Disclosure to Members of
the Adoption Triad
Recent social work
practice embraces fuller disclosure of
background information, in recognition of the
benefits to all members of the adoption triad.
These benefits include:
For Children: Facilitates early
diagnosis and treatment as needed; avoids
duplication of testing; may signal need for
preventive services; provides children with a
sense of their history
For Birth Parents: Communicates the
agency's commitment to helping adoptive family
understand the child's needs; communicates the
agency's commitment to assuring that the child
has a sense of history
For Adoptive Parents: Promotes
informed decision-making; ensures that the
family is emotionally and financially prepared;
assists family in making plans for the child;
reduces the risk of adoption disruption
The Evolution of Wrongful Adoption
Liability
. Adoptive parents'
right to full disclosure of background
information was first recognized by a court in
1986 by the Ohio Supreme Court. Since then,
"wrongful adoption" cases have been
decided by courts in several other states.
Wrongful adoption liability in all of these
cases has been based on either fraud or
negligence.
Fraud as the Basis for Wrongful
Adoption: Courts first recognized wrongful
adoption as a cause of action against adoption
agencies when intentional misconduct that rose
to the level of fraud was identified by adoptive
parents. The two types of "wrongful
adoption" fraud cases are intentional misrepresentation --
deliberately giving inaccurate material
background information -- and deliberate concealment --
deliberately withholding material
background information.
Negligence as a Basis for Wrongful
Adoption: The other basis for wrongful
adoption is negligence. Negligence may be
established on the basis of negligent misrepresentation --
carelessly conveying inaccurate material
background information-- or negligent nondisclosure -- carelessly
failing to convey material background
information.
Wrongful adoption
liability can be summarized as follows:
Commission
Negligent Intentional
Disclosure Misrepresentation
Without due care
_________________________________________
Deliberate
Negligent Failure Deliberate
To Provide Concealment
Information
Omission
Application to International Adoption
Wrongful adoption
liability is not confined to domestic adoption
cases, although its extension to the
international arena is recent. Wrongful adoption
litigation in the context of international
adoptions is an inevitable result of the growth
in international adoption over the last decade
and the attention that has been given to issues
regarding the health and developmental status of
children adopted from abroad.
Unlike the longer line
of domestic wrongful adoption cases, the few
reported decisions in international wrongful
adoption cases do not reflect a clear path of
legal development. The cases, however, do
suggest that wrongful adoption liability may be
avoided if agencies communicate in writing to
prospective adoptive parents the limitations on
available information. These cases, it should be
noted, only address the potential liability of
agencies in the United States and do not set
forth the responsibilities of agencies located
in other countries which act as intermediaries
for adoption agencies in this country.
Damages for Wrongful Adoption
When adoptive parents
are successful in wrongful adoption actions
against adoption agencies, they may be awarded
money damages on a variety of grounds,
including:
Extraordinary medical expenses
Costs associated with medical care
Tutoring and other special education
expenses incurred by the family.
Lost wages
Damages for emotional distress
[Available in only some jurisdictions]
Damages for physical injury
Punitive damages [Available in only
some jurisdictions]
Recommendations for Avoiding Wrongful
Adoption Liability
The following focuses on
the advice that attorneys may give to adoption
agencies to assist them in minimizing exposure
in terms of liability of wrongful adoption.
Attorneys may counsel agencies to take the
following steps:
1. Obtaining and Disclosing Material
Health and Other Background Information
Agencies should be
helped to use the concept of
"materiality" to guide the collection
and disclosure of health and other background
information. Material information is any
information that may be important to a
prospective adoptive parent in deciding whether
to adopt a particular child. The wrongful
adoption cases thus far, for example, have
considered birth parents' mental health
histories and the child's history of emotional
or behavioral problems to be
"material" information. It is the
failure to disclose material information that
deprives prospective adoptive parents of an
opportunity to make an informed decision and
which places agencies at risk of liability for
wrongful adoption. Agencies should have
processes in place to ensure that material
information is obtained from birth families and
is communicated to prospective adoptive parents.
Collection of material
health and other background information involves
work with birth parents to elicit, through
counseling and sensitive questioning: medical
history, family background, and other
information bearing on the child's health and
developmental status. In addition to interviews
with birth parents, there are specific
strategies that agencies can use to enhance the
quality and reliability of the health and other
background information they obtain. Specifically
with regard to collection of health information,
agencies may use birth parent medical
questionnaires; obtain and review hospital and
other health care records; and ensure that
children have physical examinations. Agencies
should also develop clear policies and
guidelines on collection and disclosure of
social and family background information and
disclosure of information on children's HIV
status.
2. Educating Prospective Adoptive Parents
About the Limits on Information-Gathering and
Disclosure
Attorneys can further
assist agencies in limiting their exposure to
wrongful adoption liability by ensuring that
they understand the importance of explaining to
prospective adoptive parents that there are
limits on the extent to which health and other
background information may be fully and
accurately obtained. Agencies should clarify
that in virtually every case there is
information that the agency may not know. In
each individual case, an agency should identify
any areas in which information is missing with
regard to the child's health or social or family
background and explain that the information that
is available may not be entirely accurate.
3. Heightening Adoptive Parents' Awareness
of their Own Responsibilities
A third area in which
attorneys can assist agencies to enhance
practice in the area of information disclosure
is through encouraging them to educate
prospective adoptive parents about their own
roles and responsibilities in the process. As a
starting point, agencies should clearly
communicate to prospective adoptive parents that
there are risks inherent in adoption, just as
there are risks in any form of parenting.
Prospective adoptive parents should be helped to
understand that, by pursuing adoption, they will
be assuming responsibilities for which there are
no guarantees of specific results or outcomes.
Key to practice in this area is communicating to
prospective adoptive parents that
notwithstanding an agency's best efforts to
obtain and disclose health and other background
information, it is not possible to provide an
assurance that all existing information has been
discovered nor is it possible to predict the
future health status of a child.
4. Providing Adoptive Parents with Written
Disclosure of Health and Other Background
Information and with Documents that Describe the
Risks Associated with Adoption
Attorneys can assist
agencies to develop procedures that ensure that
adoptive parents are provided with written
information on the health and social background
of the child and ensure that adoptive parents
sign, acknowledging receipt of the information.
Whenever possible, agencies should provide
copies of reports, assessments or other
documentation, rather than summarizing material.
Summaries pose significant risks. On the one
hand, errors in transcription can alter the
intended meaning of the information, giving rise
to liability for negligence. Morever, summaries
tend to include interpretations of the meaning
or significance of the information --
interpretations which should be made by medical
experts. When materials are provided to
prospective adoptive parents on multiple pages,
the adoptive parents should initial each page,
indicating that they have reviewed the entire
document.
5. Making Staff Training a Priority
A major area deserving
agencies' attention is staff training. Attorneys
should advise agencies to ensure that staff are
thoroughly familiar with standards of quality
practice in collecting and communicating health
and other background information. Staff should
have a clear understanding of the importance of
such information for the child, the birth
family, prospective adoptive parents, and the
adoptive family. Staff also should have skills
in working with birth families to obtain needed
information and in fully and accurately
conveying that information to prospective
adoptive families. Staff should be familiar with
and able to effectively use the agency's
required documentation related to the gathering
and disclosure of health and other background
information.
6. Obtaining Appropriate Liability
Insurance
In light of the
increased incidence of wrongful adoption
litigation and today's generally more litigious
climate, it is crucial for attorneys to
encourage agencies to review the substance and
scope of their liability insurance. In addition
to maintaining adequate general liability and
umbrella policies, agencies should also have:
professional liability coverage to protect
themselves and their staff in the event of
claims related to professional services
rendered; and directors' and officers' liability
insurance to protect directors and officers who
may appear as additional named defendants in
suits alleging professional malpractice. At a
minimum, professional liability insurance should
include coverage for negligence, and, ideally,
for fraud and discrimination claims (or, at
least, defense costs associated with such
claims).
Areas of Concern for the Future: Extension
of Wrongful Adoption Liability
With the increase in
wrongful adoption suits, agencies recognize the
potential liability they face if they fail to
disclose known material health and other
background information to prospective adoptive
parents. Recent court decisions provide
important guidance on the parameters of the duty
to disclose in domestic adoptions. The recent
international cases likewise provide guidance on
disclosure, particularly in relation to the
types of written agreements agencies should
utilize with prospective adoptive parents.
Questions, however, have arisen about the
appropriate scope of this duty. Increasingly,
writers in the field and practitioners are
advocating policies and practices that are
asserted to be critical to fulfilling agencies'
duty to disclose and to avoiding liability for
wrongful adoption. These recommendations warrant
close analysis, both from the perspective of the
extent to which they promote quality practice
and the extent to which they provide agencies
with appropriate guidance in avoiding wrongful
adoption liability.
One area warranting
close analysis is the duty to investigate.
Although no court in a reported opinion to date
has recognized a duty to investigate, some
writers have argued that such a duty should be
imposed on agencies to ensure that full and
accurate information is gathered and
communicated to prospective adoptive parents.
These writers contend that without a duty to
investigate, the information that agencies
gather will be limited and agencies will be able
to claim that their minimal efforts were
sufficient. In the words of one proponent,
without imposing the duty to investigate, there
is a risk that adoption agencies will take a
"see no evil, hear no evil, and say no
evil" approach. Proponents of a duty to
investigate, however, generally have not
considered how implementing an
investigation-oriented gathering of information
might compromise casework with birth families
and even more troubling, discourage birth
parents from considering adoption because of
privacy concerns.
A second area relates to
the issue of communicating facts versus
suspicions. The disclosure of background
information raises questions about the duty to
communicate not only known information but
information that adoption social workers may
suspect or infer from statements from birth
parents. Some agencies report that, out of
concerns about failure to disclose and potential
wrongful adoption liability, they have made it a
practice to inform prospective adoptive parents
about any suspected background fact even though
unverified. This practice raises a range of
ethical and practice issues related to
improperly labeling a child and thereby delaying
adoptive placement.
A third area warranting
analysis relates to the use of genetic testing
of children for purposes of adoption
evaluations. This practice promotes the use of
presymptomatic genetic testing to determine the
existence of genetic markers for diseases or
conditions that the child could develop in the
future. One of the benefits attributed to this
practice is that it will offer adoption agencies
greater insulation against wrongful adoption
suits. This proposed use of genetic testing
generally has not taken into account the ethical
considerations that presymptomatic testing
raises nor the potential danger of creating new
standards of practice against which agency
liability would be determined.
A fourth area of concern for
many adoption professionals who desire to
communicate full information to prospective
adoptive families is the extent to which
interpretative information about background
facts should be conveyed. Staff may believe that
prospective adoptive parents need to better
understand the background information they are
given and may feel pressed to interpret the
information that has been provided -- even when
they lack the expertise to do so. The wrongful
adoption cases counsel against such a practice.
Imparting inaccurate information can subject an
agency to liability. Staff generally should not
offer interpretative information but instead
should refer prospective adoptive parents to
independent experts and other resources with the
requisite expertise.
Finally, an issue with
which agencies often struggle is the
communication of health and other background
information acquired after an adoption is
finalized. Although some states have established
central registries which allow birth parents to
provide updated health information, neither
statutes nor wrongful adoption case law imposes
a legal duty on agencies to provide adoptive
families with information obtained after the
adoption has been finalized. In the absence of a
legal duty, the question becomes whether the
agency has a professional responsibility to
provide adoptive families with information
acquired after finalization.
Areas of Concern for the Future:
"Wrongful Placement" Claims by Adult
Adoptees
Some agencies have
expressed concerns that current policies
promoting transracial adoption and recent
mandates related to the Americans with
Disabilities Act may lead to claims by adopted
individuals that they were improperly placed
with unsuitable adoptive families. With regard
to transracial adoption policies, the concern is
that adoptees may later claim that adoptive
placements outside their communities of color
have harmed them. Federal law, as stated in the
Interethnic Adoption Provisions of the Small
Business Job Protection Act of 1996, essentially
prohibits the consideration of race, culture, or
ethnicity in a foster or adoptive placement.
Will agencies, conforming to these mandates,
later face liability if an African American
child adopted by a white family, for example,
asserts that he or she was harmed by being
deprived of a family and community of his or her
own race and culture? If an individual
attributes mental health problems to his
transracial adoption, will the agency
potentially have liability under a theory of
wrongful placement? Although speculative at this
point, there are aspects of transracial adoption
practice that may have implications related to
"wrongful placement", issues that
should be carefully considered as policies in
this area are implemented.
In addition to the
federal requirements related to transracial
adoption practice, there are federal legislative
requirements in the Americans With Disabilities
Act of 1990 (ADA) which also raise concerns
related to potential "wrongful
placement" liability. The ADA broadly
protects individuals with disabilities from
discrimination in the workplace as well as in
relation to services provided by certain
"public accommodations" such as
private adoption agencies. The ADA prohibits
adoption agencies from categorically rejecting
individuals as prospective adoptive parents by
reason of an actual or perceived disability.
Protected disabilities under the ADA broadly
include physical diseases, handicapping
conditions, and mental illnesses and disorders.
Although agencies are permitted to conduct
individualized assessments to determine whether,
on the basis of safety, an individual with a
disability should qualify as an adoptive parent,
there are, nonetheless, risks associated with
decisions to reject applicants based on
disability. Agencies potentially face charges of
discrimination and litigation based on alleged
violations of the ADA when they reject
applicants on the basis of disability. Potential
liability under the ADA appears to exist even
when agencies inquire about applicants' health
and other history in an effort to comply with
state laws that require prospective adoptive
parents to be in reasonably good health as a
prerequisite to adopting. From the standpoint of
potential liability for "wrongful
placement," there is the possibility that
an adoptee could later assert negligence on the
part of an agency for placing her with an
adoptive parent whose physical or mental
disability should have alerted the agency to
significant limitations in the individual's
ability to parent. Will agencies, for example,
later face liability because they place children
with individuals with histories of mental health
problems and who later abuse or neglect them? If
an individual claims emotional injury from being
placed with an adoptive parent whose known
medical condition resulted in an early death,
leaving the adopted child to suffer yet another
loss, could an agency be held liable? These
issues have not yet been addressed.
Conclusion
The development of the
tort of wrongful adoption has had an important
impact on adoption practice. Although attorneys
and adoption professionals have long recognized
the benefits of disclosure for all parties to an
adoption, there have been a notable number of
cases in which agencies have failed to disclose
children's known health and other background
information with resulting harm to adoptive
families who were unprepared to meet the
medical, emotional and developmental needs of
the children whom they adopted. Courts that have
recognized the tort of wrongful adoption and
held agencies liable for fraudulent and
negligent conduct have clearly outlined the type
of misconduct for which agencies will be held
liable. There remain, however, questions about
the nature and scope of wrongful adoption
liability, particularly in the area of
international adoption, where lawsuits have only
recently begun to be filed, and in relation to
such questions as the duty to obtain full
information, the communication of unverified and
interpretative information, the use of genetic
testing as part of pre-adoption evaluations, and
the duty to disclose updated information. In
spite of the lack of clarity in a number of
areas, attorneys can assist agencies to
implement a range of practices that will enhance
their ability to properly disclose health and
other background information and limit their
exposure to liability for wrongful
adoption.
1.
This synopsis is
based on the authors' book, Wrongful Adoption:
Law, Policy and Practice (1998). Washington, DC:
Child Welfare League of America Press.
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