A legal term for an adoption that should not have occurred or would not have occurred had all the relevant facts about the child been made available to the adoptive parents. Instead, information was deliberately misrepresented and/or withheld by the agency, and as a result, the adoptive parents were essentially defrauded.
Adoption agencies and, many times, other adoption providers such as attorneys, are not required to provide identifying information to adopting parents and in fact are precluded by most state laws from violating the birthparents' confidentiality. However, they are ethically (and often legally) bound to tell the truth about a child's medical and psychiatric status. Today, only six states do not mandate that adoptive parents must be given all known nonidentifying medical information. As of this writing, these states are: Alaska, Arkansas, Florida, New York, Rhode Island and South Carolina.
The first reported successful case of wrongful adoption occurred in 1986 in Burr v. Board of County Commissioners of Stark County in Ohio. Prior to this case, the only recourse for adoptive parents was to seek the dissolution of the adoption, a remedy often denied by courts, despite the circumstances. However, in this case, the parents did not seek to set aside the adoption but instead sought to receive monetary payment from the adoption agency.
The Burrs had adopted a 17-month-old boy in 1964. They had been told he was a healthy normal child born of an 18-year-old mother.
The child suffered numerous diseases and physical problems, and the Burrs opened the sealed adoption records with a court order in 1982. They sought this information because they believed the information might help them with the child's numerous physical problems.
They learned the child's birthmother was not 18 but was actually a 31-year-old inmate of a psychiatric institution, and the birthfather was probably another inmate. They also learned that psychological evaluations of the child indicated the child was subnormal intellectually and further evaluations were recommended. In addition, the social worker had not revealed that the child had been in two foster homes prior to his adoptive placement.
A jury awarded the Burrs $125,000 for medical and emotional damages. The decision was appealed to the Franklin County Court of Appeals of Ohio and later the Ohio Supreme Court, which both upheld the decision of the jury.
In a later case, withholding of information was deemed important and actionable. In Michael J. v. Los Angeles County, Department of Adoptions, a single adoptive mother prevailed in 1988. In this case, the child had an extensive birthmark and a physician refused to provide a prognosis. The agency told the mother that the child was in good health, and she adopted him. The agency did not tell the adoptive mother about the doctor's refusal to provide a prognosis. It later became known that the port wine stain was a symptom of a rare disease, Sturge-Weber Syndrome. Although agency staff did not know about the child's illness or the significance of the birthmark, the court held that the adoptive mother should have been told that a doctor would not make a prognosis on the child's future health.
In another case, Meracle v. Children's Services Society (1989), a wrongful adoption suit was filed against a Wisconsin agency for inaccurate information that led to an adoption. In this case, the agency told the family that the child's birthfamily had a history of Huntington's disease but that the birthfather had tested negative and thus the child was not at risk. The family later learned that there was no test for a predisposition to Huntington's disease. The disease manifested later in the child.
The court ruled for the adoptive parents, stating that the agency was wrong when it told the family the child was not at risk for the disease and thus negligent in providing erroneous medical information.
In M.H. & J. H. L. v. Caritas Family Services (1992), the agency told the Minnesota family that there was a "possibility of incest" in the birth family, although they provided no further details. The couple adopted and the child had severe emotional problems. Upon investigation, it was learned that the child's birthparents were a 13-year-old girl and her 17-year-old brother. The agency knew this but did not disclose the information. The adoptive parents prevailed.
In Gibbs v. Ernst (1994), the Pennsylvania court held "an adoption agency has a duty to disclose fully and accurately to the adopting parents all relevant nonidentifying information in its possession concerning the adoptee." In this case, the family was told that the five-year-old boy they were interested in adopting had lived with one family for two years after removal from his birthfamily for neglect. He was said to be hyperactive but with no other problems. The family had stated that they did not want to adopt a child who had any history of physical or sexual abuse.
Later, the child became severely mentally ill and was hospitalized and diagnosed with schizophrenia. It was determined that the child had been both physically and sexually abused in the past and he had had many foster placements before the family adopted him. The agency was aware of these facts but did not disclose them.
In an ongoing case (as of 1999), Juman v. Louise Wise Services, a case much like the 1986 wrongful adoption lawsuit, described at the beginning of this essay, a New York couple sued the Louise Wise agency. The agency had told them the birthmother of their child had completed two years of college but became distraught when her fianc? died of a heart attack and she then became pregnant in an impulsive rebound love affair. What they did not tell the family was that the birthmother had been diagnosed with schizophrenia and had in fact been given a frontal lobotomy many years before the birth of her child. In addition, the biological father was a patient at the same psychiatric institution where she received treatment.
The family had numerous problems with the child, who was diagnosed with depression, bipolar disorder and schizophrenia. Upon request, the agency told the family that the birthmother had had problems with depression but did not disclose the severity of her mental illness.
Later, Michael, the adult adopted son, sought information on his own and located a member of his biological family. Michael learned the truth about his birthmother's mental problems. As of this writing, the case is not settled. Michael Juman died a possible suicide in 1994.
These wrongful adoption lawsuits should not imply to readers that adoptive parents always prevail. Nor does it mean that an agency, adoption attorney or other provider can ever "guarantee" lifelong mental and physical health for any child.
In Harper and Johnson v. Adoption Center of Washington (1995), a family lost their wrongful adoption case in the District of Columbia. They learned that the child they had adopted from Russia had FETAL ALCOHOL SYNDROME, a condition they would not have accepted. But the information had been disclosed to the family, in Russian, just before the adoption. The adoptive father signed a document stating that he would accept the child. He later argued that he could not understand Russian, but the court held against him, since he could have had the document translated.
Even when adoptive parents win their lawsuits, they do not necessarily recover the costs or expenses that they seek. For example, in February of 1998, the Washington (State) Supreme Court upheld a jury ruling that an agency erred in not providing information about previous abuse and the birthmother's drinking problem to a couple who later discovered their daughter had fetal alcohol syndrome.
Although they won their case, no damages were awarded, in part, because the couple received some public assistance for the child's problem and also because the couple allegedly knew the child had problems. However, the adoptive mother said that social workers had told her the child would be fine with love and attention. (Children with fetal alcohol syndrome can benefit greatly from love and attention; unfortunately, it will not make the disease go away.)
In other cases, adoptive parents have lost their lawsuits because of contractual language that they had signed when they applied to adopt, which released the agency from all legal claims. This was the finding in Ferenc v. World Child in the District of Columbia in 1997.
Why Information Was Withheld in the Past
One explanation for why some adoption agencies, attorneys and other adoption providers in the past failed to provide information on serious psychiatric or physical illnesses of birthparents-or of the child to be adopted-was the prevailing view at the time that environment was all and heredity was unimportant. The general viewpoint was that a "good home" could rectify any potential problems a child might have or even already exhibit.
Another reason for nondisclosure was misplaced altruism: some social workers feared that no one would adopt a child born to mentally ill parents. Or, if anyone did adopt the child, workers feared the adoptive parents would constantly watch for signs of illness in the child and would not treat him as a normal person.
This does not justify lies, evasions and omissions that some agencies committed in the past but is only offered as an explanation for seemingly incomprehensible behavior.
Wrongful Adoption Lawsuits May Serve to Improve Adoption Practice
In her law article, Danielle Saba Donner summed up wrongful adoption in this way: "The recent emergence of the tort of wrongful adoption, with its ever-widening scope of liability, as well as its endorsement in the final draft of the UAA [Uniform Adoption Act], has tremendous implications for agency practice. Indeed, child welfare authorities, anticipating the extension of liability based on a duty to investigate, have strongly recommended that agencies implement written disclosure policies and conduct more extensive worker training?.?.?. Whether this preference for the private remedy of wrongful adoption is attributed to market forces, even child welfare authorities agree that this reversal in agency practice, with regard to disclosure, benefits not only the adoptive parents, but the adopted child as well."
Christine Adamec, The Complete Idiot's Guide to Adoption. (New York: Alpha Books, 1998).
Lisa Belkin, "What the Jumans Didn't Know About Michael," The New York Times Magazine, March?14, 1999.
Jay Croft, "Mother's Doctor Hurt Baby, Jury Says $2.7 Million Awarded to Adoptive Parents of Child Born with Deformities After Birth Mother Took Accutane," The Atlanta Journal-Constitution, March?14, 1998.
Danielle Saba Donner, "The Emerging Adoption Market: Child Welfare Agencies, Private Middlemen, and 'Consumer' Remedies," University of Louisville Journal of Family Law, (summer 1996-1997): 473-535.
Madelyn Freundlich and Lisa Peterson, Wrongful Adoption: Law, Policy and Practice, (Washington, D.C.: CWLA Press, 1998).
John Gibeaut, "Disclosing Birth Secrets," ABA Journal 84 (July?1, 1998): 34.
"Medical Liability: Interview with Sam Totaro, Attorney" Adoption Medical News 4, no. 9 (October 1998): 1-6.
Claire Grandpre Combs, "Wrongful Adoption: Adoption Agency Held Liable for Fraudulent Representations," Cincinnati Law Review, 56 (1987): 343-359.
John R. Maley, "Wrongful Adoption: Monetary Damages as a Superior Remedy to Annulment for Adoptive Parents Victimized by Fraud," Indiana Law Review, 20 (1987): 709-734.
Michele Schiffer, "Fraud in the Adoption Setting," Arizona Law Review, 29 (1987): 707-723.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.
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