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Wrongful adoption: fewer secrets and lies, but agencies still fail at full disclosure.

Kevin and Diane Hogan already had one adopted child when they decided to adopt Alex, a beautiful baby boy, from a home for pregnant teens. Not long after they brought him home, however, the Hogans realized something was wrong. Alex was wracked by seizures and cried inconsolably for hours. As a toddler, he seemed to be in his own world.

Finally, at age four, Alex was diagnosed with two serious developmental disorders. The Hogans later discovered Alex's birth mother had a long history of medical problems and drug abuse--facts the caseworker had neglected to tell them.

Feeling betrayed and facing a mountain of medical expenses and care costs for Alex, the Hogans sued the home for wrongful adoption, alleging the caseworker had been negligent in failing to disclose the birth mother's background. They recovered a verdict, but the damages will be insufficient to cover the life-long costs of caring for Alex after he reaches maturity. (Hogan v. Elizabeth Lund Home, Inc., No. 50016-95-CnC (Vt., Chittenden County Super. Ct. June 27, 1997).)

Fortunately, experiences like the Hogans' are the exception, not the rule. The vast majority of the more than 120,000 adoptions every year in the United States do not end in litigation. But this is scant comfort for adoptive parents who feel they have been misled by inaccurate or incomplete information about a child. And while adoption agencies have improved some of their most criticized procedures, some problems--particularly those involving foster care children--aren't going away. What's more, because of an increase in overseas adoptions, some of the old problems are being replaced by new ones.

Appellate courts in at least 10 states have specifically recognized some form of wrongful adoption since the Ohio Supreme Court first recognized the tort in Burr v. Board of County Commissioners of Stark County (491 N.E.2d 1101 (Ohio 1986).) The first cases involved intentional acts, such as an agency's fraudulent misrepresentations about or deliberate concealment of an adoptee's background or medical history. Soon after, courts began recognizing a cause of action for negligent provision of inaccurate information.

The litigation has had an effect on agency practice, according to Madelyn Freundlich, executive director of The Evan B. Donaldson Adoption Institute in New York City. "With the evolution of wrongful adoption lawsuits," Freundlich said, "there are many incentives that have communicated to agencies how important it is that the necessary information is shared. They know they face significant legal exposure if they fail to provide it."

State laws, too, have helped shape agency practice. More than half the states have some form of law requiring disclosure of a child's background and medical information to adoptive parents. Many reputable agencies go beyond the law and look to guidelines promulgated under the Child Welfare Act, Freundlich said.

As a result of changing laws, better training of workers, and the threat of litigation, adoption experts say there are fewer cases today involving intentional misrepresentations by agency workers. "The kinds of things that happened years ago don't happen today," said Judith Ashton, head of the New York State Citizens' Coalition for Children. "Social work practice and ethical practice have evolved to the point where, generally speaking, people believe full disclosure is appropriate and necessary." She added there are still cases where information is withheld, but the deceptions aren't as blatant.

Communication of necessary information seems to be a special problem in the growing number of overseas adoptions, particularly those involving children from Russia and Eastern Europe, where children have been institutionalized in orphanages.

Samuel Totaro Jr., a Philadelphia lawyer who handles wrongful adoption cases, explained that more and more parents are looking overseas to adopt because they fear if they adopt in the United States, the birth father might reappear one day and challenge the adoption. In many countries overseas, Totaro said, birth fathers don't have these rights with children born out of wedlock, so there aren't the same risks. "But parents are trading legal risks for medical ones," he said.

Susan Cox of Holt International Children's Services in Eugene, Oregon, agreed there are special problems with children from Russia and Eastern Europe. She noted that Holt--one of the nation's largest agencies--does not have a program for placing Russian children. "The children arrive in institutions because of abuse and neglect, much like foster care kids here. So they are going into the process with different circumstances in life already."

Complicating these adoptions is the fact that U.S. agencies often must use a foreign facilitator, someone who may have a connection with the orphanage but little or no training. A major problem, Totaro said, is that the U.S. agency doesn't exercise control over the facilitator.

Often, orphanages in Russia or Eastern Europe refuse to release a child's medical records to a facilitator, Totaro explained, so the facilitator must do a summary of the records. But even if the medical records are made available, the facilitator might decide not to turn all of them over to the U.S. agency if this will affect the child's chances of being adopted. "The problem is that facilitators are paid for each adoption that is completed, so there is a built-in conflict--they have no incentive to turn over accurate information," Totaro said.

Proving what the facilitator knew and had access to is one of the biggest challenges in these cases, Totaro said. "The law in most states is that an agency is not a guarantor of a child's health. Agencies can only guarantee that the information they do have is disclosed. So the issue becomes, What did the facilitator have in his possession and disclose? It's not the same as dealing with a U.S. agency that will comply with discovery requests."

Another challenge is establishing that there was an agency relationship. The U.S. agency will argue the foreign facilitator was acting as an independent contractor over whom the agency exercised no control. Totaro said plaintiff lawyers can overcome this defense by obtaining documents between the agency and facilitator showing he or she was the agency's representative in that country and was paid by the agency.

Waivers signed by adoptive parents are yet another problem in these cases. Minneapolis lawyer Kay Nord noted that earlier in the decade, there were no waivers.

"The agency just gave parents a sheet saying, `Here is some basic information.' Now, agencies are being much more careful," Nord said. "They are saying, `We're not making representations beyond this.' It makes it difficult for parents to sue. What agencies are having parents sign makes it clear that there are limited disclosures and that there are no guarantees the information is correct." Two federal appeals courts have upheld waivers signed by adoptive parents. (French v. World Child, Inc., No. 97-7167, 1998 U.S. App. LEXIS 25743 (D.C. Cir. Sept. 10, 1998); Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201 (7th Cir. 1998).)

Lack of adequate information is a problem in domestic adoptions, as well--particularly those involving children who have been in the foster care system. These children, who often come from troubled backgrounds and may have been abused or neglected, sometimes bring with them physical, emotional, and behavioral problems that overwhelm the adoptive parents.

These adoptions fail often enough that the recently enacted Adoption and Safe Families Act--which provides financial incentives for states to increase adoptions of children in foster care--includes a provision to maintain federal assistance for children who must return to foster care when their adoptions fail. (Katharine Q. Seelye, Specialists Report Rise in Adoptions that Fail, N.Y. Times, Mar. 24, 1998, at A14.)

Access to information can be a special problem in foster care cases, because of bad record keeping, large turnover of caseworkers, or frequent movement of the child from home to home, said Ashton, of the New York State Citizens' Coalition for Children. Also, she noted, sometimes caseworkers are afraid to "tell all" for fear the parents will decide not to go through with the adoption--a fear she says is misplaced. "If the family is well prepared," Ashton said, "they know they have to make a realistic choice, and they can only do that based on good information."

Litigation challenges

Wrongful adoption cases involving domestic adoptions bring their own set of challenges for plaintiff lawyers. Totaro noted that these cases often involve abused or neglected children who have been placed in foster care through state agencies. Private adoption agencies seeking to place these children may not be aware of everything that happened in foster care, he explained, because of insufficient communication between state caseworkers and private agencies.

"These are cases where the caseworker failed to get all the records or deliver them, or some ended up missing from the file," Totaro said. "Or, in some cases, the worker figured it would be better for the child's chances if certain information were left out." The state agencies are immune from negligence suits, so plaintiff lawyers must tie in the private agency that did the placement by arguing that the private agency should not have relied on the state agency.

Robert Mello, the South Burlington, Vermont, lawyer who handled the Hogans' case, said damages can be a major problem because of the common law rule that says parents are entitled to recover for the care of a child only until the child is 18 years old. To recover care expenses for the duration of the child's life, parents must prove the child will never be self-supporting.

The problem, Mello explained, is that a jury is not always willing to accept this. In the Hogans' case, Mello offered testimony from a child psychiatrist as well as from Alex's treating psychiatrist. But the defense used a nationally renowned child psychologist who disputed the boy's diagnosis. Mello said this may have affected the jury's willingness to conclude Alex would never be self-supporting. He said lawyers need to realize that this may be difficult to prove.

Stephan Sheehan, a Providence, Rhode Island, lawyer who handles wrongful adoption cases, added that defendants often argue they should receive a set-off for benefits provided by state and federal programs. Sheehan argues that there is no assurance these benefits will be there in the future and that, in any event, an agency should not be entitled to benefit from a burden that must be borne by taxpayers.

As wrongful adoption cases are posing new challenges for plaintiff lawyers, new causes of action are being tested. In a lawsuit that may break new ground in this area, a woman is suing a hospital for failing to tell her that her adopted son had been born with risk factors for the AIDS virus.

Melody Moreau charges that when she adopted her son Justin from New York Foundling Hospital in 1984, social workers at the hospital told her Justin was perfectly healthy. In fact, she alleges, the social workers intentionally failed to disclose the details of medical records showing that Justin had been born with cocaine and heroin in his system and needed treatment at a high-risk clinic. Ten years after his adoption, Justin was diagnosed as HIV positive. (Moreau v. Catholic Archdiocese, No. 13057/1996 (N.Y., Richmond County Sup. Ct. filed Sept. 6, 1996).)

Obtaining the necessary records to prove intent has been a big obstacle, says Moreau's lawyer, Matthew Titone, of Staten Island, New York. "There is such a shroud of secrecy around the whole adoption process, it makes it difficult to get all your evidence together," he said. He added that another problem is that the fraud laws are written for commercial transactions. "You have to treat children as damaged goods, which is insulting," Titone said.

Although wrongful adoption cases have changed over the past decade, one theme remains constant: It's not medical problems or behavioral disorders that unhinge adoptions, it's the parents' lack of knowledge about these conditions beforehand. As Sheehan noted, "The statistics on failed adoptions show that these were cases where the parents just didn't know. They had to suffer the disillusionment of getting something they didn't know they were getting. It poisons adoptions."

Liane Leshne former editor-in-chief ATLA Law Reporters
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Title Annotation:Review
Author:Leshne, Liane
Geographic Code:1U1VT
Date:Apr 1, 1999
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