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.

————————————————–

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.