Over the last decade, adoption agencies have confronted issues related to obtaining and disclosing information to prospective adoptive families about the health and social background of children and their birth families. Quality practice supports the sharing of such information. Litigation related to this issue has shown, however, that in a number of cases, adoption agencies and independent practitioners have failed to provide prospective adoptive families with known information about a child’s physical, emotional or developmental problems or with critical background information about the child’s birth family and history. In these cases, adoptive families, deprived of such information, have found themselves neither emotionally nor financially prepared to care for a child whose needs require enormously expensive medical or mental health treatment. Some of these families have sought redress in the courts. Typically, the plaintiffs, adoptive parents, claim that they were wronged by agencies which failed to provide them with their child’s full background information; that in doing so, the agency deprived them of the opportunity to make an informed decision as to whether to proceed with the adoption; and they were harmed as a result [that is, suffered financially, physically, or emotionally].
Courts have recognized a duty to disclose known material 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 and awarded adoptive families monetary damages. Although the duty to disclose applies to agencies and independent practitioners alike, most of the cases to date have involved agencies. A breach of the duty to disclose can take many forms and, depending on the state, liability may be imposed when agencies misrepresent a child’s background, deliberately withhold information, or are negligent in providing prospective adoptive parents with information that could be material to their decision whether to adopt a particular child.
While courts have provided a legal remedy when adoptive families have been harmed by failures to disclose, state legislatures have sought, through statute, to define the disclosure obligations of adoption practitioners to reduce the incidence of “wrongful adoption” and facilitate informed decision-making by adoptive families. Most states have statutes addressing this issue, although there is considerable variation among these statutes regarding the scope of the disclosure obligations.
The Historical and Legal Context
The extent to which prospective adoptive parents have had access to health and other background information about children has varied over time. During the first half of the twentieth century, quality adoption practice supported providing prospective adoptive parents with all the facts in a child’s case record. Since the 1950s, however, social work practice has been more reactive with regard to this issue, changing in response to a variety of factors, including psychoanalytic theory, social mores, and the political climate of the time. Adoption practitioners have witnessed the pendulum swing from full disclosure to greater secrecy and then back again to increased disclosure. In summary, these trends can be traced as follows:
- Early 20th Century: Background information on children placed for adoption was openly disclosed.
- Mid 1950s: Background information was selectively disclosed and often only “positive” information was shared. There were concerns that disclosure of “negative” information would unduly arouse adoptive parent anxiety and jeopardize the success of the adoption.
- Mid 1970s: More information [albeit mainly non-identifying] was shared in response to demands by adoption support, self-help, and advocacy groups.
- Mid 1990s: This era, characterized by “talk shows” and “tell all” books and easy technological access to information via the Internet, has seen a greater demand for information on all fronts. In adoption practice today, there is a recognition that background information should be shared, and openness among the parties to an adoption is more common.
- Avoiding Litigation Future Concerns Introduction
The Benefits of Disclosure to Members of the Adoption Triad. Recent social work practice embraces fuller disclosure of background information in recognition of the benefits to all members of the adoption triad. These benefits include:
- For Children: Facilitates early diagnosis and treatment as needed; avoids duplication of testing; may signal need for preventive services; provides children with a sense of their history
- For Birth Parents: Communicates the agency’s commitment to helping the adoptive family understand the child’s needs; communicates the agency’s commitment to assuring that the child has a sense of history.
- For Adoptive Parents: Promotes informed decision-making; ensures that the family is emotionally and financially prepared; assists the family in making plans for the child; reduces the risk of adoption disruption.
The Evolution of Wrongful Adoption Liability. Adoptive parents’ right to full disclosure of background information was first recognized in 1986 by the Ohio Supreme Court. Since then, “wrongful adoption” cases have been decided by courts in several other states. Wrongful adoption liability in all of these cases has been based on either fraud or negligence.
Fraud as the Basis for Wrongful Adoption: Courts first recognized wrongful adoption as a cause of action when intentional misconduct that rose to the level of fraud was identified by adoptive parents. The two types of “wrongful adoption” fraud cases are intentional misrepresentation – deliberately providing inaccurate material background information; and deliberate concealment -deliberately withholding material background information.
Negligence as a Basis for Wrongful Adoption: The other basis for wrongful adoption is negligence. Negligence may be established on the basis of negligent misrepresentation – carelessly providing inaccurate material background information; or negligent nondisclosure – carelessly failing to provide material background information.
Wrongful adoption liability can be summarized as follows:
- Fraud (Commission): Deliberate, Intentional Misrepresentation, Deliberate Concealment
- Negligence (Omission): Without Due Care, Negligent Disclosure, Negligent Failure To Provide Information
Application to International Adoption. Wrongful adoption liability is not confined to domestic adoption cases, although its extension to the international arena is recent. Wrongful adoption litigation in the context of international adoptions is an inevitable result of the growth in international adoption over the last decade and the attention that has been given to issues regarding the health and developmental status of children adopted from abroad. Unlike the longer line of domestic wrongful adoption cases, the few reported decisions in international wrongful adoption cases do not reflect a clear path of legal development. The cases, however, do suggest that wrongful adoption liability may be avoided if agencies communicate in writing to prospective adoptive parents the limitations on available information. These cases, it should be noted, only address the potential liability of agencies in the United States and do not set forth the responsibilities of agencies located in other countries which act as intermediaries for adoption agencies in this country.
Damages for Wrongful Adoption. When adoptive parents are successful in wrongful adoption actions against adoption agencies, they may be awarded money damages on a variety of grounds, including:
- Extraordinary medical expenses
- Incidental costs associated with medical care
- Tutoring and other special education expenses incurred by the family
- Lost wages of adoptive parent(s) caring for child
- Damages for emotional distress [Available in only some jurisdictions]
- Punitive damages [Available in only some jurisdictions]
Recommendations for Avoiding Wrongful Adoption Liability
There are several measures that adoption agencies can take to minimize exposure to liability for wrongful adoption. Attorneys may counsel agencies to take action in the following areas:
Obtaining and Disclosing Material Health and Other Background Information. Agencies should be helped to use the concept of “materiality” to guide the collection and disclosure of health and other background information. Material information is any information that may be important to a prospective adoptive parent in deciding whether to adopt a particular child. The wrongful adoption cases thus far, for example, have considered birth parents’ physical and mental health histories and the child’s history of emotional or behavioral problems to be “material” information. Agencies should have processes in place to ensure that material information is obtained from birth families and is communicated to prospective adoptive parents.
Collection of material health and other background information involves work with birth parents to elicit, through counseling and sensitive questioning: medical history, family background, and other information bearing on the child’s health and developmental status. In addition to interviews with birth parents, there are specific strategies that agencies can use to enhance the quality and reliability of the health and other background information they obtain. Specifically with regard to collection of health information, agencies may use birth parent medical questionnaires; obtain and review hospital and other health care records; and ensure that children have physical examinations. Agencies should also develop clear policies and guidelines on collection and disclosure of social and family background information and disclosure of information on children’s HIV status.
Educating Prospective Adoptive Parents About the Limits on Information-Gathering and Disclosure. Attorneys can further assist agencies in limiting their exposure to wrongful adoption liability by ensuring that they understand the importance of explaining to prospective adoptive parents that there are limits on the extent to which health and other background information may be fully and accurately obtained. Agencies should clarify that in virtually every case there is information that the agency may not know. In each individual case, an agency should identify any areas in which information is missing with regard to the child’s health or social or family background and explain that the information that is available may not be entirely accurate.
Heightening Adoptive Parents’ Awareness of their Own Responsibilities. A third area in which attorneys can assist agencies is through encouraging them to educate prospective adoptive parents about their own roles and responsibilities in the process. As a starting point, agencies should clearly communicate to prospective adoptive parents that there are risks inherent in adoption, just as there are risks in any form of parenting. Prospective adoptive parents should be helped to understand that, by pursuing adoption, they will be assuming responsibilities for which there are no guarantees of specific results or outcomes. Key to practice in this area is communicating to prospective adoptive parents that notwithstanding an agency’s best efforts to obtain and disclose health and other background information, it is not possible to provide an assurance that all existing information has been discovered nor is it possible to predict the future health status of a child.
Providing Adoptive Parents with Written Disclosure of Health and Other Background Informationand with documents that describe the risks associated with adoption. Attorneys can assist agencies to develop procedures to ensure that adoptive parents are provided with written information on the health and social background of the child and that adoptive parents sign, acknowledging receipt of the information. Whenever possible, agencies should provide copies of reports, assessments or other documentation, rather than summarizing material. Summaries pose significant risks. On the one hand, errors in transcription can alter the intended meaning of the information, giving rise to liability for negligence. Moreover, summaries tend to include interpretations of the meaning or significance of the information, interpretations which should be made by medical experts. When materials are provided to prospective adoptive parents on multiple pages, the adoptive parents should initial each page, indicating that they have reviewed the entire document.
Making Staff Training a Priority. A major area deserving agencies’ attention is staff training. Attorneys should advise agencies to ensure that staff are thoroughly familiar with standards of quality practice in collecting and communicating health and other background information. Staff should have a clear understanding of the importance of such information for the child, the birth family, prospective adoptive parents, and the adoptive family. Staff also should have skills in working with birth families to obtain needed information and in fully and accurately conveying that information to prospective adoptive families. Staff should be familiar with and able to effectively use the agency’s required documentation related to the gathering and disclosure of health and other background information.
Obtaining Appropriate Liability Insurance. In light of the increased incidence of wrongful adoption litigation and today’s more litigious climate, it is crucial for attorneys to encourage agencies to review the substance and scope of their liability insurance. In addition to maintaining adequate general liability and umbrella policies, agencies should also have: professional liability coverage to protect themselves and their staff in the event of claims related to professional services rendered; and directors’ and officers’ liability insurance to protect directors and officers who may appear as additional named defendants in suits alleging professional malpractice. At a minimum, professional liability insurance should include coverage for negligence, and, ideally, for fraud and discrimination claims (or, at least, defense costs associated with such claims).
In light of the increased incidence of wrongful adoption litigation and today’s more litigious climate, it is crucial for attorneys to encourage agencies to review the substance and scope of their liability insurance. In addition to maintaining adequate general liability and umbrella policies, agencies should also have: professional liability coverage to protect themselves and their staff in the event of claims related to professional services rendered; and directors’ and officers’ liability insurance to protect directors and officers who may appear as additional named defendants in suits alleging professional malpractice. At a minimum, professional liability insurance should include coverage for negligence, and, ideally, for fraud and discrimination claims (or, at least, defense costs associated with such claims).
Areas of Concern for the Future:
Extension of Wrongful Adoption Liability.
With the increase in wrongful adoption suits, agencies recognize the potential liability they face if they fail to disclose known material health and other background information to prospective adoptive parents. Recent court decisions provide important guidance on the parameters of the duty to disclose in domestic adoptions. The recent international cases likewise provide guidance on disclosure, particularly in relation to the types of written agreements agencies should utilize with prospective adoptive parents. Questions, however, have arisen about the appropriate scope of this duty. Increasingly, writers in the field and practitioners are advocating policies and practices that are asserted to be critical to fulfilling agencies’ duty to disclose and to avoiding liability for wrongful adoption. These recommendations warrant close analysis, both from the perspective of the extent to which they promote quality practice and the extent to which they provide agencies with appropriate guidance in avoiding wrongful adoption liability.
One area warranting close analysis is the duty to investigate. Although no court in a reported opinion to date has recognized a duty to investigate, some writers have argued that such a duty should be imposed on agencies to ensure that full and accurate information is gathered and communicated to prospective adoptive parents. These writers contend that without a duty to investigate, the information that agencies gather will be limited and agencies will be able to claim that their minimal efforts were sufficient. In the words of one proponent, without imposing the duty to investigate, there is a risk that adoption agencies will take a “see no evil, hear no evil, and say no evil” approach. Proponents of a duty to investigate, however, generally have not considered how implementing an investigation oriented gathering of information might compromise casework with birth families and even more troubling, discourage birth parents from giving any consideration to adoption because of privacy concerns.
A second area warranting analysis relates to the issue of communicating facts versus suspicions. The disclosure of background information raises questions about the duty to communicate not only known information but information that adoption social workers may suspect or infer from statements from birth parents. Some agencies report that, out of concerns about failure to disclose and potential wrongful adoption liability, they have made it a practice to inform prospective adoptive parents about any suspected background fact even though unverified. This practice raises a range of ethical and practice issues related to improperly labeling a child and thereby delaying adoptive placement.
A third area warranting analysis relates to the use of genetic testing of children for purposes of adoption evaluations. This practice promotes the use of pre symptomatic genetic testing to determine the existence of genetic markers for diseases or conditions that the child could develop in the future. One of the benefits attributed to this practice is that it will offer adoption agencies greater insulation against wrongful adoption suits. This proposed use of genetic testing generally has not taken into account the ethical considerations that pre symptomatic testing raises nor the potential danger of creating new standards of practice against which agency liability would be determined.
A fourth area of concern for many adoption professionals who desire to communicate full information to prospective adoptive families is the extent to which interpretative information about background facts should be conveyed. Staff may believe that prospective adoptive parents need to better understand the background information they are given and may feel pressed to interpret the information that has been provided – even when they lack the expertise to do so. The wrongful adoption cases counsel against such a practice. Staff generally should not offer interpretative information but instead should refer prospective adoptive parents to independent experts and other resources with the requisite expertise.
Finally, an issue with which agencies often struggle is the communication of health and other background information acquired after an adoption is finalized. Although some states have established central registries which allow birth parents to provide updated health information post- finalization, the statutes and wrongful adoption case law focuses on the legal duty of agencies to provide adoptive families with information in connection with placement. The question becomes whether the agency has a professional responsibility, if not a legal duty, to provide adoptive families with information acquired after finalization.
Wrongful Placement Claims by Adult Adoptees.
Although there are no reported cases of “wrongful placement” liability- that is, liability based on an agency’s negligence in placing a child with adoptive parents who subsequently harm the adoptee-agencies report instances of such complaints and, in some cases, settlements. In most instances, adult adoptees have raised issues related to abuse or neglect by their adoptive parents as a result of problems or behaviors- such as mental health problems or substance abuse- about which the agency was aware at the time of placement.
Some agencies have expressed concerns that current policies promoting transracial adoption and recent mandates related to the Americans with Disabilities Act may lead to additional claims by adopted individuals that they were improperly placed with unsuitable adoptive families. With regard to transracial adoption policies, the concern is that adoptees may later claim that adoptive placements outside their communities of color have harmed them. Federal law, as stated in the Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996, essentially prohibits the consideration of race, culture, or ethnicity in a foster or adoptive placement. Will agencies, conforming to these mandates, later face liability if an African American child adopted by a white family, for example, asserts that he or she was harmed by being deprived of a family and community of his or her own race and culture? If an individual attributes mental health problems to his transracial adoption, will the agency potentially have liability under a theory of wrongful placement? Although speculative at this point, there are aspects of transracial adoption practice that may have implications related to “wrongful placement”, issues that should be carefully considered as policies in this area are implemented.
In addition to the federal requirements related to transracial adoption practice, there are federal legislative requirements in the Americans With Disabilities Act of 1990 (ADA) which also raise concerns related to potential “wrongful placement” liability. The ADA broadly protects individuals with disabilities from discrimination in the workplace as well as in relation to services provided by certain “public accommodations” such as private adoption agencies.
The ADA prohibits adoption agencies from categorically rejecting individuals as prospective adoptive parents by reason of an actual or perceived disability. Protected disabilities under the ADA broadly include physical diseases, handicapping conditions, and mental illnesses and disorders. Although agencies are permitted to conduct individualized assessments to determine whether, on the basis of a direct threat to others, an individual with a disability should qualify as an adoptive parent, there are, nonetheless, risks associated with decisions to reject applicants based on disability. Agencies potentially face charges of discrimination and litigation based on alleged violations of the ADA when they reject applicants on the basis of disability. Potential liability under the ADA appears to exist even when agencies inquire about applicants’ health and other history in an effort to comply with state laws that require prospective adoptive parents to be in reasonably good health as a prerequisite to adopting.
From the standpoint of potential liability for “wrongful placement,” there is the possibility that an adoptee could later assert negligence on the part of an agency for placing her with an adoptive parent whose physical or mental disability should have alerted the agency to significant limitations in the individual’s ability to parent. Will agencies, for example, later face liability because they place children with individuals with histories of mental health problems and who later abuse or neglect them? If an individual claims emotional injury from being placed with an adoptive parent whose known medical condition resulted in an early death, leaving the adopted child to suffer yet another loss, could an agency be held liable? These issues have not yet been addressed.
Conclusion
The development of the tort of wrongful adoption has had an important impact on adoption practice. Although attorneys and adoption professionals have long recognized the benefits of disclosure for all parties to an adoption, there have been a notable number of cases in which agencies have failed to disclose children’s known health and other background information with resulting harm to adoptive families who were unprepared to meet the medical, emotional and developmental needs of the children whom they adopted. Courts that have recognized the tort of wrongful adoption and held agencies liable for fraudulent and negligent conduct have clearly outlined the type of misconduct for which agencies will be held liable. There remain, however, questions about the nature and scope of wrongful adoption liability, particularly in the area of international adoption, where lawsuits have only recently begun to be filed, and in relation to such questions as the duty to obtain full information, the communication of unverified and interpretative information, the use of genetic testing as part of pre-adoption evaluations, and the duty to disclose updated information. In spite of the lack of clarity in a number of areas, attorneys can assist agencies to implement a range of practices that will enhance their ability to properly disclose health and other background information and limit their exposure to liability for wrongful adoption.
Source:Â Coalition Conference presentation by Madelyn Freundlich, based on the authors’ book, Wrongful Adoption; Law, Policy and Practice (1998), Child Welfare League of America Press.