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While Ann N. was watching a television program called “Waiting Child,” she saw an irresistible toddler available for adoption. A single social worker in California’s Central Valley, Ann decided to adopt Matthew from San Francisco’s Department of Human Services and began proceedings. On May 14, 1989, she became the proud parent of Matthew, whom she was told was healthy after starting life addicted to cocaine and alcohol, as was his mother. Seven years later, San Francisco adoption officials notified Ann that Matthew’s birth mother had died of AIDS. They advised her to have him tested for HIV. He tested positive. Although doctors prescribed special medication for Matthew, his health has deteriorated. So, Ann retained San Francisco attorney Allan Lerch, who filed a lawsuit, Ann N. v. City and County of San Francisco, 988136, alleging adoption officials intentionally concealed from her that Matthew’s birth mother was a prostitute and at high risk for HIV infection. But on Tuesday, midway through a jury trial, San Francisco Superior Court Judge John Munter granted the city’s motion for nonsuit, thus tossing out Ann’s claim for $2 million. “In short, there is no evidence sufficient to warrant a jury’s finding that [an adoption case worker] intentionally concealed or suppressed any knowledge or information to the effect that Matthew was at risk,” Munter wrote in his order. Standing outside the courtroom in tears, Ann said: “I wonder how many other children are out there like him.” Lerch had argued that the city’s adoption procedures failed to identify Matthew’s mother as someone who was at risk for contracting AIDS. He said the child should have been tested for HIV at the time he was being weaned from his own infant drug addiction. Social services officials testified at trial that at the time of the 1989 adoption, the city had not yet developed a profile for all persons who were at risk for HIV. Case worker William Holman said that he did not know that Matthew’s mother was a prostitute or that such persons were at risk for the deadly virus. Deputy City Attorney Margarita Guiterrez argued that “dramatic changes” in HIV education were made between the time of Matthew’s adoption and the present. “Plaintiff cannot make a prima facie showing that the city, through its employees, intentionally concealed any material fact,” Guiterrez’s nonsuit motion said. Munter agreed, saying “in a case where the only claim is one of intentional concealment, there can be no duty to disclose that which is unknown to the person charged with fraud.” Although Munter acknowledged that Ann “has found herself in an extremely unfortunate and sympathetic situation,” he said his hands were tied. “This court is constrained to follow the law, and under the evidentiary record presented in this case, the law does not afford her relief against the city and county of San Francisco for intentional concealment.” The case had earlier been submitted for arbitration before attorney Jerome Shapiro. He awarded Ann $250,000. The city filed for a trial de novo and got it. Lerch of Allan Lerch & Associates said he will appeal Munter’s ruling to the 1st District Court of Appeal. He will cite the case of Michael J. v. Los Angeles Department of Adoptions, 201 Cal. App. 3d 859, where the 2nd District Court of Appeal held that adoptive parents of a youngster afflicted with health problems could sue for intentional concealment of the condition, but not for negligence. The appellate court said, “There must be a good faith full disclosure of material facts concerning existing or past conditions of the child’s health.” “The adoption of a child is an act of compassion, love and humanitarian concern where the adoptive parent voluntarily assumes enormous legal, moral, social and financial obligations,” the court added. “Accordingly, a trustworthy process benefits society, as well as the child and parent. … As trustees of the child’s destiny the agency was obligated to act with morals greater than those found in a purveyor’s common marketplace.”

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