Introduction

Since the Ohio Supreme Court first recognized a wrongful adoption claim in 1986, numerous lawsuits alleging wrongful adoptions have been filed against both private and public adoption agencies in other states. Presently, wrongful adoptions are recognized in California, Illinois, Massachusetts, Minnesota, New York, Ohio, Pennsylvania, Rhode Island and Wisconsin.

Wrongful adoption suits are filed by adoptive parents, on behalf of themselves and their adopted children, against adoption agencies for misrepresenting their child's health and psychological background prior to adoption. Adoptive parents have been more successful in obtaining the costs associated with their child's care than in collecting monetary damages for emotional pain and suffering.

This Issue Brief explains the legal standards used by state courts to determine liability for wrongful adoptions and discusses how adoption agencies can avoid these lawsuits through good policy and practice.

Legal Standards

Although each state may have different legal grounds for determining liability for wrongful adoption, this Issue Brief consolidates the various standards into two basic categories. Depending on the state, adoption agencies may be liable for (1) an intentional and/or (2) a negligent misrepresentation of the adopted child's medical and psychological background. Agencies need to understand these concepts so that they can use them as a guide for developing good disclosure policies and practices.

A. Intentional Misrepresentation

On one hand, adoption agencies may be liable for deliberately presenting false or misleading information about the child's medical or psychological background to the adoptive parents before the adoption is finalized. This means that an adoption agency will be liable if (1) the agency intentionally misrepresents important, or material, information about the child's background in order to induce the adoptive parents to adopt the child; (2) the prospective adoptive parents, relying on the agency's misrepresentations, adopt the child; and (3) the parents are harmed as a result of these false statements.

For example, in the case of Burr v. Board of County Commissioners, the adoption agency intentionally misrepresented the child's background to the adoptive parents. The agency claimed that the child was a "nice, big, healthy baby boy," surrendered by an eighteen year old unwed mother because she wanted a better job. The adoptive parents believed the agency's assertions and adopted the child. In the ensuing years, however, the child manifested physical and mental impairments and developed Huntington's disease.

In the course of the child's treatments, the parents learned that the adoption agency had records which indicated that both the child and his birthmother had low intelligence and that the child was at risk for Huntington's disease, a degenerative brain disease. They sued the adoption agency for wrongful adoption and successfully obtained money damages for their child's medical costs. Because the adoption agency deliberately presented false information to the parents and foresaw that the adoptive parents would rely on their material misrepresentations, and since the Burrs relied on the agency's representations, the agency was held accountable for the Burrs' injuries.

A variant of intentional misrepresentation is fraudulent concealment. It arises when adoption agencies intentionally deceive prospective adoptive parents by deliberately withholding material, i.e. important, information that they are supposed to disclose as required by statute or common law. The agency must have intended to conceal such information in order to induce parents to adopt the child. The parents must have relied on these fraudulent statements. Finally the parent and/or the child must have been harmed as a result.

Michael J. v. County of Los Angeles is an example of fraudulent concealment. In this case, the adoption agency deliberately concealed the truth about the port wine stain on the child's upper torso and face from the prospective adoptive parent. The agency knew that this stain was symptomatic of Sturge-Webb Syndrome, a congenital degenerative nerve disorder and should have disclosed this to the adoptive parent. However, the agency did not. The parent relied on the agency's assessment and eventually adopted the child.

After the disease manifested, the parent sued the adoption agency and won monetary damages. The Michael J. court not only ruled that the agency's actions constituted an intentional misrepresentation, but also imposed an obligation on adoption agencies to disclose all material information it has about a child. Failure to do so can be grounds for liability under a theory of fraudulent concealment.

In brief, adoption agencies may be liable for wrongful adoptions if they intentionally misrepresent the health background of the child or deliberately conceal part of a child's history.

B. Negligent Misrepresentation

Adoption agencies may also be liable for not using due care--or not being prudent and careful--when they disclose material background information to prospective adoptive parents. If these careless misrepresentations of a child's past result in or cause the adoptive parents to proceed with the adoption, and the parent or the child is harmed, adoption agencies become liable. Failure to use due care subjects adoption agencies to liability for negligent misrepresentation.

Generally negligent misrepresentation is recognized only in cases where the agency voluntarily discloses information. For example, in Meracle v. Children's Service Society, the adoption agency voluntarily informed prospective adoptive parents that the child's grandmother had died of Huntington's Disease, a degenerative brain disease, but because the adoptee's father tested negative for Huntington's, the child would not develop the disease. Clearly, the agency did not conceal the child's medical history.

Several years after the adoption, the child was diagnosed with Huntington's disease. The parents sued, claiming that the agency was negligent when it stated that, because the father tested negative for the disease, the child would not develop Huntington's disease. However, no such test existed. The Wisconsin Supreme Court agreed and ruled that when an adoption agency voluntarily informs parents of the child's background, it assumes a duty to disclose all of the child's non-identifying information. If the agency acted carefully and reasonably, it never would have told the adoptive parents that the child was free of the disease because the agency had no basis to make such a claim.

While negligent misrepresentation is generally recognized only in cases where an agency voluntarily discloses the child's background, one state has determined that adoption agencies should also be liable for negligent misrepresentation simply because they have a duty to disclose all the information they have to adoptive parents to enable them to make sound parenting decisions.

In Mohr v. Commonwealth, the Massachusetts court not only held the adoption agency liable for intentional and negligent misrepresentation, but also imposed an affirmative duty on adoption agencies to disclose information it has about a child to adoptive parents. Essentially, this means that an agency may be liable for negligent misrepresentation simply because it failed to provide full and fair disclosure to prospective adoptive parents, irrespective of whether it voluntarily assumed the duty to disclose.

In summary, adoption agencies will be liable for negligent misrepresentations when they carelessly disclose important aspects of a child's medical and health history to prospective adoptive parents. This can occur when agencies either assume a duty to disclose and fail to do so or fail to disclose even when they are under an obligation to disclose.

Avoiding Liability Through Good Policy and Practice

Clearly, the aforementioned cases are extreme disclosure practices that should be avoided. However, agencies must do more than avoid bad practice. Adoption agencies must effectively disclose all the non-identifying information they have about a child's background to prospective adoptive parents. By routinely disclosing all the non-identifying information they have regardless of whether they are under a duty to disclose, adoption agencies may insulate themselves from wrongful adoption lawsuits and, more importantly, ensure that prospective adoptive parents have the information they need to make sound parenting decisions.

To assure effective disclosure, adoption agencies should: (1) educate caseworkers, (2) investigate the child's background, (3) prepare the information, (4) share this information with prospective adoptive parents, and (5) interpret the information through prediction techniques.

1. Educate Caseworkers

As a starting point, agencies and caseworkers should understand the legal requirements of their state, particularly what they are obligated to investigate and disclose to prospective adoptive parents. These legal mandates flow from court decisions and state statutes. As a guide, this Issue Brief provides the state requirements for collecting and disclosing medical background information in Appendix A while court decisions are discussed in the previous section.

Once agencies and caseworkers understand their technical and legal responsibilities, they can (re)formulate their disclosure policies to meet their state's legal requirements. Adoption agencies should remember that these guidelines, for the most part, are minimum requirements for adoption agencies. Agencies should strive to surpass these guidelines, if at all possible.

2. Investigate the Child's Background

With the law as a guide, adoption agencies and caseworkers should then gather the child's background information. At the outset, it must be noted that no court has held an adoption agency liable for failing to investigate the background of the child. The preferable practice, however, is to reasonably collect information regarding the child's medical and psychological history, family and foster care background, and legal status.

Practically speaking, this means that adoption agencies must ensure that their caseworkers communicate effectively with the birth families in order to secure complete and accurate information. Thus, adoption agencies must train their caseworkers in gathering the information from birth families through a skilled process of interviewing, asking the right questions, following up on these questions, and assisting birth families in sharing sensitive and often difficult information. If caseworkers are capable of effectively communicating with the birth families, they can more easily gather the child's health and medical background information.

Ideally, the investigation should be exhaustive. However, because the scope of the investigation depends on the agency's funding, resources and staff, a complete search may not be possible. Therefore, the agency must conduct a reasonable investigation in order to secure the necessary background information.

What is a reasonable investigation? There is no easy answer to this question because it usually depends on the facts of each case. However, the following questions should serve as a guide. When conducting background investigations, agencies should first ask: (1) If I were going to adopt this child, what would I want to know? (2) Have I satisfied the legal requirements of my state? (3) Have I investigated as fully as I can using the limited resources of the agency? (4) Was my investigation comparable to the practices of other adoption agencies in my state?

3. Prepare the Child's Background Information

After the agency has completed the investigation, caseworkers should organize the information they have gathered to determine whether further investigation is needed. If nothing further is required, the agency can then categorize the information into: psychological background, physical background, family history, foster care background, and legal status of the child.

The non-identifying information should then be condensed into a booklet, a pamphlet, or a printed page for prospective adoptive parents. This booklet, pamphlet or page would: (1) inform parents of the child's background, (2) guide the caseworker during the disclosure process, (3) provide a starting point for discussion between caseworker and adoptive parents, (4) prove that the adoption agency did disclose, and (5) certify what was disclosed.

Whatever form the condensed information takes, it must be written in a way that can easily be understood by the adoptive parents. It must contain all the non-identifying information that the agency has. Further, the adoptive parents must be given a copy for future reference. Providing the booklet or the pamphlet to adoptive parents, however, is not enough; caseworkers must sit down with prospective adoptive parents and help them understand the information they have just received.

4. Share the Information with Parents

The caseworker must review the materials with the prospective parents to ensure that the parents have read and understood the materials given to them. The caseworker must be careful and present only the information that has been collected through a reasonable investigation of the child's background, i.e. only the information that is on the pamphlet. If the caseworker starts making representations that are not necessarily true or expressly wrong, he would invariably be exposing the adoption agency to future liability. Thus, using the booklet or the pamphlet as a reference would be a good way of limiting disclosure to relevant and reliable information.

Sometimes, however, communication between the adoptive parent and the caseworker breaks down. As caseworkers have found, sometimes the information they provide to parents is not received or misunderstood. Adoptive parents, on the other hand, may think that the caseworker failed to disclose. This is not effective communication. Successful communication requires that information be given and received. One way to bridge the communication gap is to use the prediction technique.

5. Use the Prediction Technique

The prediction technique can be used to secure effective communication between the caseworker and the adoptive parents. While presenting the child's background information to adoptive parents, the caseworkers should pose hypothetical, yet realistic, problems that the family might encounter in the future and ask the parents how they will manage these problems. The caseworker should help the parents with their responses. These collaborative predictions should be recorded, copied and given to the parents so that adoptive parents can use them for future reference.

For example, after a caseworker discloses to the prospective adoptive parents that the child has a history of sexual abuse, the caseworker might ask, "What do you think will happen two years from now? Five years from now? When the child reaches puberty? In our experience, the following things might happen. . . . Do you foresee any problems? If there are, how are you going to cope with them?"

If parents appear uncertain or simply do not understand the questions and the information provided, the caseworker should encourage them to speak with psychiatrists, physicians, or other experts so that they can understand the information presented to them, particularly if they have questions. The caseworker must stress that neither she nor the adoption agency is an expert in the field. By making parents seek expert opinion, the caseworker not only helps the parents become educated, she also minimizes the possibility that the agency will be found liable later. Thus, caseworkers might say, "If you do not understand the implications of this background, I suggest you talk to a psychiatrist or a physician. If you have questions we cannot answer, please go to a specialist since the agency is in no way an expert in this issue."

The prediction technique encourages parents to think about the information provided by the agency and to find out more about the issue. It also encourages parents to tell caseworkers what they do and do not know. Moreover, it makes parents evaluate their resources and how they might solve possible problems in the future. Finally, by insuring that parents receive and understand the child's background information, the prediction method, assuming that the information is reliable, can shield agencies from future claims of wrongful adoption.

Conclusion

To avoid wrongful adoption suits, adoption agencies must practice good and effective disclosure. By using the techniques presented in this Issue Brief or a modification thereof, adoption agencies not only provide parents with the information they need to make sound and informed parenting decisions, but also, assuming that all the information that they disclosed is accurate, insulate themselves from future claims of wrongful adoptions.

ISSUE BRIEF XXV

© September 1997