More courts allow adoptive parents, children to sue for 'wrongful adoption.'

Each year, thousands of people joyously welcome children into their families through adoption. When everything goes smoothly, adopting a child can be a dream come true. But recently, a number of well-publicized legal disputes have shown that when something goes wrong, then the dream can become a nightmare.

While many of these cases have focused on the conflicting custody rights of biological and adoptive parents, a growing number are centered on the right of adoptive parents to information about their adopted child's medical, psychological, and family history. The case of Martin and Phyllis Juman is typical.

On May 13, 1966, the Jumans adopted a 16-month-old boy and named him Michael Lloyd. The adoption agency that placed Michael, Louise Wise Services, told the Jumans that Michael's biological mother had won a scholarship to a well-known college and had completed two years of course work. The Jumans were also told that although the biological mother had experienced "some emotional difficulty" after a boyfriend died of a heart attack, she "later sought professional help for it."

Over the next 27 years, Michael, who died last year, suffered from severe psychological problems and had to be hospitalized several times. His parents eventually learned that he was suffering from paranoid schizophrenia, a psychological disorder that can be inherited.

The Jumans later discovered that a woman who they believe is Michael's biological mother had a long history of mental illness and had undergone a frontal lobotomy years before Michael was born.

The Jumans are suing Louise Wise Services for fraud and misrepresentation, seeking substantial damages. (Juman v. Louise Wise Services, No. 5809/91 (N.Y., New York Country Sup. Ct. Feb. 9, 1994).) They claim that if they had known the truth about Michael's biological mother, they would not have gone through with the adoption.

Many courts that have considered claims against adoption intermediaries - agencies, attorneys, social workers, and others who assist in placing children with adoptive families - have dismissed them for a variety of reasons, including public policy concerns. But in January, a New York appellate court ruled that the Jumans' claims were actionable. The ruling brought New York within the ranks of a growing minority of states that have recognized claims for wrongful adoption. (Juman v. Louise Wise Services, No. 53594, 1995 N.Y. App. Div. LEXIS 149 (N.Y. App. Div. Jan. 10, 1995).)

The trend is definitely in favor of recognizing liability," says D. Marianne Blair, a family law professor at the University of Tulsa College of Law and an authority on wrongful adoption law.

The first wrongful adoption claim was recognized by the Supreme Court of Ohio in 1986. (Burr v. Board of County Commissioners, 491 N.E.2d 1101 (Ohio 1986).) By the end of last year, three federal and 15 state appellate courts had published decisions on wrongful adoption claims and more than 100 cases had either settled or were awaiting trial, according to Blair.

Although the term "wrongful adoption" is relatively new, Blair points out that specific claims against adoption intermediaries are based on well-established legal theories.

One theory that has been unanimously recognized by the courts is intentional misrepresentation. In these cases, plaintiffs, like the Jumans, claim that an intermediary intentionally misrepresented information showing that a prospective adoptee either had, or was likely to suffer from, mental, physical, or emotional disabilities.

Most courts have also ruled that adoption intermediaries that intentionally fail to disclose essential information about an adoptee's health or background can be held liable for the nondisclosure.

The courts are not as consistent in ruling on claims based on negligence theories. Some courts have dismissed negligence claims out of concern that requiring adoption intermediaries to ensure the accuracy of the information they provide would be too onerous. For example, a California court said that "an adoption agency cannot be made the guarantor of an infant's future good health and should not be liable for mere negligence in providing information regarding the health of a prospective adoptee." (Michael J. v. County of Los Angeles Department of Adoptions, 247 Cal. Rptr. 504, 513 (Ct. App. 1988).)

In contrast, the Supreme Court of Pennsylvania held that an adoption agency could be liable for negligently misrepresenting and failing to disclose that an adopted child had been physically and sexually abused by his biological parents. (Gibbs v. Ernst, 647 A.2d 882 (1994).)

The courts have drawn the liability line on allegations that adoption intermediaries have an affirmative duty to investigate a child's mental and physical health. According to Blair, judges are concerned that allowing these claims would "open up a Pandora's box of litigation."

Nevertheless, Blair believes that intermediaries should be required to conduct a reasonable investigation into a prospective adoptee's background. "Without liability for failure to investigate, there's a risk that an adoption intermediary might take a `see no evil, hear no evil, and say no evil' approach," she said.

The courts are right to be concerned about the rising number of wrongful adoption cases, according to William Pierce, the president of the National Council for Adoption, a Washington, D.C.-based association of 120 adoption intermediaries. He says an increasing number of claims "appear to be without merit." Often, these cases go unreported because the defendants settle to avoid the costs of litigation, Pierce said.

Courts must also be careful to avoid holding intermediaries to unreasonable disclosure standards, Pierce said. For example, an unwed mother may be unwilling to give an adoption agency any information about her child's father. If the child is later adopted and develops a medical condition that can be traced to the father, Pierce questions whether the agency can fairly be held liable for failing to disclose the father's medical history.

However, Pierce agrees with Blair that agencies or individuals who help place children with adoptive families should "make a reasonable effort to get rather extensive medical, social, and other background information." The National Council for Adoption has recommended this practice for some time, Pierce said.

Disclosure Policy

Full disclosure of information about adoptees was standard policy, according to Blair, until the 1920s, when adoption agencies began a movement to treat adoptions as "rebirths." Adoptive parents were encouraged to sever any ties with the biological parents, and children often were not told they were adopted.

This policy had devastating effects on some adoptive families. Parents in most of the published wrongful adoption cases from this era claim they spent years and thousands of dollars trying to find the cause of an adopted child's physical or psychological disabilities. Sometimes an accurate diagnosis was delayed until it was too late for appropriate treatment.

Adoptive parents who are kept in the dark may also be denied the chance to qualify for federal and state subsidies and other benefits available to families who adopt "special needs" children. Some states impose time limitations for filing applications for these benefits, which often include medical services and counseling, Blair said.

In the past two decades, disclosure policy has come full circle. Nearly all adoption experts now recommend that placement services give all nonidentifying information about adoptees to prospective parents, according to Blair. This policy helps to ensure that adoptees with physical or psychological disabilities are placed in homes that are emotionally and financially equipped to take care of them.

As a result of this change in philosophy, most states have enacted statutes requiring disclosure. But Blair points out that these laws are not a panacea. Disclosure provisions vary widely from state to state. Some states even leave the decision about what to disclose to the discretion of the adoption intermediary, she said.

That may soon change. A model adoption law is currently being considered by several states. The law, which was adopted last year by the Chicago-based National Conference of Commissioners on Uniform State Laws, would require intermediaries to disclose all nonidentifying information about a child's and the biological parents' medical and psychological histories.

The model act contains several controversial provisions, including restrictions on who can adopt - prospective adoptive parents would be evaluated to ensure they were fit to be parents - and limitations on when adoptions can be challenged. Some opponents of the act, including the Washington, D.C.-based Child Welfare League of America, argue that it too heavily favors the rights of adoptive parents over those of biological parents. Other critics challenge provisions that would allow for more "open" and cross-racial adoptions. (Thom Weidlich, States Take Up "Speedy" Uniform Adoption Law, Nat'l L. J., Apr. 14, 1995, at A11.)

Blair said the model law "has a terrific disclosure provision" and would create a private cause of action in cases of nondisclosure.

Several groups that have interests in adoptions support the uniform law. Nevertheless, it faces an uphill battle in the states, according to John McCabe, legislative director of the uniform state law conference. "It's just a tough area of the law, and so volatile, and there are so many people getting their oars in the water - a number of them don't like this act very well," he said.

Despite the contentious debate over the proposed legislation, McCabe said there is a glimmer of hope for a uniform change in adoption law because so "many people want to see some resolution on these issues."

For adoptive parents who were kept in the dark, that change, if it comes at all, will be too late.