In the vast majority of cases, adopted children do not have any significant impairments and are well adjusted. However, for some unfortunate adopted children and families, the placements become disastrous. Adoption agencies, either intentionally or negligently, fail to divulge to prospective adoptive parents all the medical and/or social background information they have regarding the adopted child and his or her family background. As these failures to disclose continue to occur, adoptive parents have turned to the courts to seek redress for these injuries. These suits, often characterized as actions for “wrongful adoption,” have been brought under a variety of legal theories, including intentional misrepresentation, fraud, intentional nondisclosure and negligence.
Intentional Misrepresentation (Fraud)
While adoptive parents have previously sought recovery for nondisclosure and misrepresentation by adoption agencies, wrongful adoption was not recognized as a legitimate cause of action until 1986. Prior to this time, courts uniformly held that there was no cause of action in tort for intentional or negligent representations and that adoption agencies could not be made to be “guarantors of an infant’s future health,” as in Richard P. v. Vista Del Mar Child Care Service, 165 Cal. Rptr. 370 (1980). However, the Ohio case of Burr v. Board of County Commissioners, 491 N.E.2.d 1101 (Ohio 1986), changed the perspective courts took on wrongful adoption litigation. In Burr, the court held that adoption agencies owe a duty to prospective adoptive parents to fully disclose known details of the child’s background and condition. Additionally, the Burr court required that adoptive parents seeking to successfully establish intentional misrepresentation by an adoption agency must first prove each element of the tort of fraud.
