Monthly Archives: March 2013

Legal Claims for Wrongful Adoption in Georgia

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What do you do when an adoption agency lies or misrepresents the background of a child in order to get you to adopt them and later you discover the child has health or behavioral conditions that present significant financial and emotional challenges for your family? Is there a legal solution?

I love adoptions, I love adoptive families. When I meet a family that has adopted children, I smile and get happy inside. Adoption is precious and there is something transcendent about it. It goes against our native selfishness. It is a miracle of love.

Many adoptions end well. Many adoption agencies are staffed by loving and conscientious people who want only the best for the adoptive child and new family.

But in some adoptions parents are not given vital background information about the child they bring into their family. Some families are told one thing only to find out later they were lied to and misled.

If you are one of those families – this post is for you.

Let me sketch out what I plan to talk about before I get into it.

First, I will help you understand the law of Wrongful Adoption. Wrongful Adoption law is an emerging area in our legal system. Prior to 1986 no law court had even recognized a basis in the law for a Wrongful Adoption claim. So we are somewhat in uncharted legal waters.

Second, I will provide tips about litigation challenges in the Wrongful Adoption context. I think you will find this information helpful as you try to assess whether you have a viable claim.

Third, I will clarify that what I believe Wrongful Adoptions cases are not about. I believe in once adopted, always adopted. Wrongful Adoption claims are not about undoing the adoption. Once a child is embraced by a family they become a permanent part of that family. Wrongful Adoption claims shouldn’t divorce a child from the family; they should empower families with the financial resources to provide for adopted children who turn out to have special needs.

So first – what exactly have the law courts recognized in the Wrongful Adoption context?

Wrongful Adoption is a legal claim based upon, as its name implies, a wrong. The adoptive parents (at some point in time after the adoption is completed) discover that they were wronged by adoption agencies that failed to provide them with their child’s full background information and that in failing to disclose (or misrepresenting facts about the child), the agency deprived the parents of the chance to make an informed decision as to whether to proceed with the adoption. In addition, the parents must show that they suffered harm as a result, that is, they suffered financially, physically, or emotionally.

A typical example would be a child whose parents adopt him after being told he had been in and out of foster homes, but the parents were not given access to his full records and could not have imagined all the cruelties buried in his past. In the first few months following the adoption, the child begins acting out. He may become literally uncontrollable, ruining his parents’ home and frequently accosting his siblings. Eventually everyone agrees he needs intervention but the care he needs costs hundreds of dollars every month, leaving the parents unable to pay their mortgage and in fear for the economic welfare of their other children. Should the parents be left to fend for themselves?

In response to lawsuits filed by families like the one I just described, courts have recognized a duty to disclose known relevant 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 Wrongful Adoption and awarded adoptive families monetary compensation.

What do you have to be able to prove in order to win a Wrongful Adoption case? In the first case to recognize this type of legal claim in the United States, Burr v. Board of County Com’rs of Stark County, 23 Ohio St. 3d 69, 491 N.e.2d 1101, 56 A.L.R.4th 357 (1986), the court relied upon the common law elements of fraud.

The elements listed by the Burr court were:

(a)   a representation or, where there is a duty to disclose, concealment of a fact,

(b)   which is material to the transaction at hand,

(c)   made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,

(d)          with the intent of misleading another into relying upon it,

(e)          justifiable reliance upon the representation or concealment, and

(f)           a resulting injury proximately caused by the reliance.

The Burr elements concern what we lawyers call the tort of Wrongful Adoption. A tort is simply a civil (as opposed to criminal) wrong. But a tort claim is not your exclusive remedy. Other courts have recognized that a family that is wronged by a deceptive adoption agency may have other legal grounds to sue.

For example, here in Georgia, there is the case of Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (C.A.11 (Ga.), 1996). In the Cesnik case the court allowed a breach of contract action in the Wrongful Adoption context. The Cesnik case also allowed the wronged family to maintain federal and Georgia RICO claims. RICO claims can be extremely effective in holding adoption agencies accountable since the RICO statutes allow not only for compensatory damages caused by the misconduct but also treble damages, punitive damages, attorney fees and expenses of litigation.

Moving to my second point – litigation obstacles in the Wrongful Adoption context.

Potential Obstacle # 1 –

These cases sometimes involve abused or neglected children who have been placed in foster care through government agencies. Private adoption agencies seeking to place these children may not be aware of everything that happened in foster care because of insufficient communication between state caseworkers and the private agencies.

In some cases where the state caseworker fails to get all the records or deliver them or, in some cases, the worker decides it would be better for the child’s chances if certain information were omitted.

Here is the rub: state agencies are generally immune from negligence suits, so in order for you to recover there must be a legitimate way to tie in the private agency that did the placement. One way to do this is by arguing that the private agency should not have relied on the state agency or had a duty to investigate more comprehensively.

Potential Obstacle # 2 –

It is important to assess whether you damages are adequate before you start the legal process. Litigating is expensive and time consuming. Unless your damages are significant the benefits you hope to gain may be outweighed by the costs of litigation.

What kind of damages are adequate? Call me or someone like me to find out but here is a real world example of one family who brought a viable claim –

A family adopted a little boy and were told by the adoption agency that all of the medical records and other information indicated that the boy was perfectly healthy.  The family was also told the boy’s birth mother had received prenatal care since the sixth week of pregnancy and that she had not used drugs during the pregnancy. Shortly after the boy came home the family noticed he had health problems. Four to six months later the family received the boy’s medical records. The records showed that the birth mother had, in fact, received no prenatal care, that she had tested positive for opiates and barbiturates at the time of delivery, that the delivery had been complicated, and that the boy had been born prematurely. Doctors soon diagnosed the boy with cerebral palsy, asthma, developmental disorders, and severe behavioral problems. The doctors suspected that most or all of these conditions were caused by exposure to drugs and alcohol during the pregnancy and by a lack of prenatal care.

The fact of severe health and behavioral problems justifies the bringing of a legal claim.

Potential Obstacle # 3 –

Another damages related obstacle has to do with 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.

If the parents can only recover for medical expenses during the child’s minority (until he or she turns 18) this drastically reduces the amount of compensation which the family can request.

It is important to discuss with the child’s physicians whether he or she will ever be self-supporting.

Potential Obstacle # 4 –

If your child will receive any governmental benefits related to a health or behavior condition the attorneys for the adoption agency may argue that they should receive a set-off or credit for benefits provided by state and federal programs. This could reduce or eliminate the amount of compensation.

Of course there is no guarantee that a child will continue being eligible for governmental benefits. And it would unfair if the agency that lied to the family was allowed to shift the financial burden for caring for the child to taxpayers.

Potential Obstacle # 5 –

What if you signed a waiver or notice of the risk that your adoptive child would have health or behavioral problems? Does that mean you have no case?

Agencies frequently have potential adoptive parents sign a waiver of liability and notice of risk. Such waiver and notices may shield an agency from certain legal liabilities. But exercising the proper duty of care may not be contracted away by the agency. There is always grounds for challenging a waiver that excuses an agency from behaving in a prudent and reasonable manner.

My third and final point – permanency for adopted children.

One of the overarching purposes of adoption law is creating permanency and stability for children. A commitment to adopt a child is analogous to a marriage commitment. It is “until death do us part.”

As an attorney whose professional mission is to advocate for children, I will never use the emerging area of Wrongful Adoption law to undo a child’s adoption and terminate that child’s status as a part of the adoptive family.

The value and virtue of Wrongful Adoption laws is to empower adoptive families who have been deceived to provide a loving home and all support care necessary for the flourishing of the child and family.

If you think I may be able to assist you in setting things right so that your family is not financially devastated by the wrongdoing of an agency, I would love to talk with you.

Conclusion

When you adopt a child you are wholly dependent on the adoption agency to provide truthful and accurate information about the child. If that agency abuses your trust and lies or misrepresents the truth about your child’s background, they have committed a moral and legal wrong. They need to be called to account. And sometimes a lawsuit is a fitting means of accountability.

Keep in mind that as with all legal claims, certain time deadlines do exist. These are known as “statutes of limitation” and they limit how long you have to file suit. If you miss the deadline you lose all your rights with regard to that particular claim. In Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (C.A.11 (Ga.), 1996), the court indicated that the deadline on Wrongful Adoption claims (at least so far as the tort claim goes) is probably 2 years from the date of the agencies wrongful acts.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with special needs children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564. 

Child Injury at Unlicensed or Exempt Daycare Centers in Georgia

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Does it matter if the daycare center where your child was injured was unlicensed or exempt from licensure? It may matter, if you intend to bring a legal claim for your child’s injuries.

Operating a daycare center that should have a license without one is a horse of a different color than operating a daycare center that is not required to be licensed. I’m going to talk a bit about how to tell the difference between exempt and non-exempt daycare centers. And then I’ll talk about why it matters.

First off, you need to know that some Georgia daycare centers are exempt from Georgia licensing standards. The Georgia Department of Early Care and Learning (also known as Bright From The Start) promulgates regulations that govern these matters. The regulations exempt certain types of child care programs. Click on this link if you’d like to see a full copy of the exemption rules but I’ll give you a few highlights from the rules so you’ll have an idea what kinds of programs don’t have to get a license. 

The following are examples of the types of programs which are exempt from being licensed:

1. Programs which are owned and operated by any department or agency of state, county, or municipal government. So, all public schools would be included in this category of exempt daycare centers.

2. Private non-public educational programs with an established curriculum for children five (5) years and older that operate during the school term for the customary school day, as defined by Georgia law.  So, most of what we commonly refer to as “private schools” are exempt.

3. Parent’s Morning Out, Parent’s Night Out, or similar programs which operate for no more than one session of up to four (4) consecutive hours per day and which limit attendance to no more than eight (8) hours a week per child.

4. Nursery schools, playschools, kindergartens or other educational programs for children two (2) years through six (6) years of age which operate for no more than four (4) consecutive hours per day.

5. Day camp programs for children five (5) years and older that are operated between school terms, whose primary purpose is to provide organized recreational, religious, or instructional activities.

6. Short-term educational or recreational activities or classes for children in which the supervision and care of the children are incidental to their participation in the activity or training in specific subjects, such as, but not limited to, music lessons, dance classes, swim lessons, etc. The provider is not assuming responsibility for supervision and care of the children outside of the classes or activities the children’ participate in and shall not advertise or otherwise represent that child care services are offered. Note the requirement that the provider not advertise or represent they are offering child care services. If the provider does advertise or represent they are offering child care services the arguably are subject to the licensure requirements.

7. Any short-term child care service provided by an establishment, such as, but not limited to, a religious facility, health club, or retail store, and such program or service meets all of the following:

(i) Operated on the premises of the establishment;
(ii) Operated for the convenience of the parents, guardians, or custodians and for the use of on-duty employees or students attending classes;
(iii) Parents, guardians, or custodians are participating in activities provided by the establishment on the premises of the establishment;
(iv) Parents, guardians, or custodians are readily available;
(v) Attendance of child in the short-term child care service is limited to no more than four (4) hours per day and no more than ten (10) hours per week, except in the instance of child care services offered at infrequent events such as, but not limited to, conferences and weddings.

8. Programs operated after the customary school day, as defined in Georgia law, for children five (5) years and older that are strictly instructional and skill-based in a single talent, ability, expertise, proficiency or subject or in closely related skills, proficiencies or subjects, including but not limited to classes such as art, cheerleading, dance, drama, gymnastics, martial arts and music, and the programs comply with all of the following:

(i) Programs provide direct instruction in the single skill or subject and/or closely related skills or subjects to every child each day the child is present;
(ii) Programs do not provide services that are not directly related to the single skill or subject or to the closely related skills or subjects, such as but not limited to homework assistance. During the hours of operation, programs may provide services related to the instruction, such as transportation and giving children time to change into proper clothes/gear;
(iii) Programs shall not advertise or otherwise represent that the program is a child care facility, an after school program, or that the program offers child care services;
(iv) Programs shall not prepare meals and snacks, but may provide ready-to-eat snacks, such as pre-packaged snacks;
(v) The majority of the program staff responsible for instruction shall possess specialized qualifications to instruct in that skill or subject, and the program shall submit documentation of such specialized qualifications of staff to the department at the time of application for exemption or as requested by the department;
(vi) Programs shall inform parents or guardians about the physical risks a child may face while participating in the program;
(vii) Such programs shall not be an integral part of a licensed child care learning center or day care center;
(viii) Enrollment information shall clearly define the duration of the program.

9. Short term educational programs offered to school-aged children in which the supervision and care of the children are incidental to their participation in the short-term educational program, and the provider is not assuming responsibility for the provision of daily child care outside the scheduled program. The majority of staff responsible for the direct delivery of education services to children possesses specialized qualifications that are directly related to the short term educational programs being offered, and the program shall submit documentation of such specialized qualifications to the department at the time of application for exemption or as requested by the department. The sole or primary purpose of such short term educational programs is:

(i) To prepare children for advancement to the next educational level through a prescribed course of study or curriculum;
(ii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children with the passage of mandatory educational proficiency examinations;
(iii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children in specific academic areas, such as, but not limited to, foreign language, mathematics, science, etc.

10. Any program or facility providing care for school-aged children that is operated by, or in affiliation with a national membership non-profit organization that was created for the purpose of providing youth services and youth development, that charges a membership fee for children and may receive monthly, weekly, or daily fees for services. Such program or facility holds membership in good standing and is certified by its national association as complying with the association’s purposes, procedures, minimum standards and mandatory requirements. Such national membership organizations include, but are not limited to, the Boys and Girls Clubs of America.

11. Any program providing group care for children for no pay. There’s an easy one: no compensation = exempt from licensure. 

12. A center that is licensed by the department may request an exemption from licensure if the center’s program is an integral part of an established religious congregation or religious school that conducts regularly scheduled classes, courses of study, or educational programs and is a member of or accredited by or certified by a state, regional, or national accrediting agency for religious educational instruction or a state, regional, or national accrediting agency for educational instruction as recognized and approved by the department if such accrediting entity uses standards that are substantially similar to those established by the department. In addition to the requirements listed above applicable to all exemptions, the following additional requirements shall apply to centers seeking an exemption under this provision:

(i) A center seeking such exemption from licensure shall be required to submit to the department documentation of certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and any other pertinent documentation as requested by the department, such as non-profit tax-exempt verification. The accrediting agency must conduct regularly scheduled visits to the center while such center remains accredited.
(ii) If such exemption is granted, the center shall submit annual documentation to the department verifying its continued certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and other pertinent documentation as may be requested by the department.
(iii) Such exemptions granted by the department are valid as long as the center remains certified or accredited. The program shall provide the department written notice within five (5) business days of the center’s loss of certification or accreditation, including a copy of such notification from the certifying or accrediting entity. The department shall rescind the center’s exemption granted herein upon notification of the loss of certification or accreditation.
(iv) Any center seeking such exemption shall comply with all applicable requirements for background checks for directors/employees as required in O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, department policies, as well as applicable local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements while such exemption is in effect. The department retains jurisdiction over centers granted such exemption to conduct unannounced periodic background check audits and to conduct complaint investigations regarding compliance with background check requirements, as well as compliance with local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements.
(v) The department may rescind such exemption for a center’s failure to comply with the requirements for background checks for directors/employees pursuant to O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, and department policies.
(vi) Any center applying for such exemption that is owned and/or under the legal control/direction of the certifying or accrediting entity shall not be approved by the department.
(vii) A center seeking such exemption shall adopt and comply with the minimum standards of its certifying or accrediting entity for the operation of the center’s program. Such minimum standards adopted by the center shall be published and made available to parents of enrolled or prospective children upon request.
(viii) A center granted such exemption shall comply with the requirements regarding notification to parents of enrolled children if the center does not carry liability insurance.

OK, I’ll stop with the regulations that never end. Here’s my point in sharing all the detail with you: it’s complicated. It takes rigorous research to determine if a particular program that appears to be subject to licensure may in fact be entitled to an exemption. Call me or someone like me if you want to be sure.

So why may it matter to your legal claim if a daycare center is exempt? It may matter because exempt programs have a much lower level of accountability. They are not scrutinized the same way as licensed providers. The State doesn’t do the kind of inspections that are done at licensed daycare centers. And when your lawyer sets out to build your legal case against a negligent daycare provider, there won’t necessarily be any records of State inspections. And, perhaps most importantly, there may be an issue about whether the Bright From the Start regulations that pertain to child safety even apply to exempt centers. 

That does not mean we can not successfully claim against an exempt daycare center. It simply means a claim brought against an exempt daycare center must proceed along a different track than a claim against a licensed daycare center. You want to select an attorney who is 1) aware of the difference between exempt and non-exempt programs, and 2) will persevere through the detailed research required to determine which category your child’s daycare center falls into.

Now please don’t stop reading quite yet, because in many ways the most important information is still to come.

The reason why I began this post by talking about exempt daycare centers is because many folks tend to jump to the conclusion that an unlicensed daycare center is always an illegal daycare center. You know from what I’ve written above that is not the case. Many are exempt from licensure under Georgia law.

So any lawyer worth their salt is going to take the time to analyze what situation applies to you and your child’s injury claim: do we have a situation where the daycare center is required to obtain a license? Or is the program exempt? That’s an important question to ask at the start.

But let’s talk now about daycare centers that are not exempt but instead required to be licensed by the State of Georgia. Let’s assume the program in which your child was injured was such a non-exempt program but had no license. What then?

You may have a very strong case, assuming your attorney can show that the lack of licensure was causally connected to the injury your child sustained (by which I mean that the failure to obtain a license or something flowing from that failure is what caused your child to get injured.)

I have blogged elsewhere about using Georgia licensing standards for daycare centers to prove negligence. So I’m not going to discuss that again in this post. But keep in mind that even if a non-exempt daycare center neglects to get licensed, they still owed your child the duties provided for in the Georgia licensing standards.

Here is a report I found interesting on a daycare center that was recently shut down by authorities in Savannah, Georgia. It was shut down after it was discovered they were operating without a license – WJCL Looks Into Child Care Center Laws

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Attorney Pete Pearson practices personal injury law in Atlanta, Georgia and has a special interest in helping families of injured children. He is a father to six and lives with his wife and children in Conyers, Georgia. He can be reached directly at Six-Seven-Eight 358-2564.