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.
In a landmark case, Gibbs v. Ernst, 647 A.2d 882 (Pa. 1994), the Pennsylvania Supreme Court upheld the right of adoptive parents to maintain an action against an adoption agency for misrepresentation (fraud) and negligence. In Gibbs, the adoptive family, before adopting their child, was provided with certain medical records and background information concerning him and his biological parents. After the adoption became final, the child began to manifest violent, aggressive behavior toward other children, which required hospitalization. He was subsequently diagnosed with a condition of "schizophrenia and undersocialized aggressiveness" as well as "severe anger, vengeance and extreme self-justification."
Years later, a case worker informed the adoptive parents that the child's records indicated that he had a history of being severely physically and sexually abused by his biological parents, had been in at least 10 foster placements in his first five years of life and had been removed from the placements because of his aggressive behavior. The Supreme Court held that adoption agencies with legal authority to arrange and facilitate adoptions are professional entities with an uncompromising duty to maintain integrity in dealing with all prospective adoptees and adoptive parents. In citing and adopting the rationale of Burr, the Gibbs court ruled that "it would be a 'travesty of justice' to allow adoption agencies to engage in deceitful and fraudulent conduct with impunity."
In 1988, the California Court of Appeals, Second District, recognized a cause of action for wrongful adoption based upon intentional failure to disclose. In Michael J. v. Los Angeles County Department of Adoptions, 247 Cal. Rptr. 504 (Cal. Dist. Ct. App. 2d Dist 1988), a single adoptive parent and the adoptee brought an action against the county adoption agency for negligence and fraud, seeking damages for medical expenses and emotional distress. The adoptive parent alleged that prior to placement, the county failed to determine the medical condition of the adoptee and made misrepresentations of complete health. These allegations stemmed from the fact that, at birth, the child was born with a port-wine stain on his upper torso and face. The adoptive parent alleged that the adoption agency knew, or in the exercise of reasonable care should have known, that this stain was a manifestation of Sturge-Weber syndrome, a congenital degenerative nerve disorder. The complaint additionally argued that at the time of the child's birth, the adoptive mother inquired about the stain and would not have adopted the child if she had known the stain was a manifestation or symptom of Sturge-Weber syndrome. Additionally, because the adoptive mother did not learn of the existence of the disorder until 11 years after the child's birth, the child did not receive any treatment for the condition until that time.
Because the medical records indicated that the doctor would not make a definite statement as to the prognosis of the child, the court held that the adoptive mother and adoptee had a cognizable claim. In so holding, the court stated:
"But here the evidence raised a triable issue of fact regarding the failure to disclose a material fact within the agency's possession that the examining physician would not render a prognosis for the child. The significance of that fact at the very least suggests that the nondisclosure was fraudulent."
The court concluded by stating that there must be a good-faith full disclosure of material facts concerning existing or past conditions of an adoptee's health. Lastly, the California court made clear that public policy cannot extend to condone concealment or intentional misrepresentation that mislead prospective adoptive parents.
A cause of action for wrongful adoption has also been found where unintentional negligent conduct by an adoption intermediary results in disclosure of inaccurate health-related information. Negligent conduct on the part of an adoption agency, which can lead to the failure to accurately disclose critical health-related information to adoptive parents, can be characterized as follows: (1) an agency may negligently misrepresent a material fact related to the health of the child that the agency should have known was not true; (2) the agency could be negligent in the actual transmission of the information, so information in its possession that should not have been revealed was unintentionally withheld; and (3) an agency may be negligent by failing to properly investigate the health history of a child and disclose information it should have been able to disclose. (See "Getting the Whole Truth and Nothing but the Truth: The Limits of Liability for Wrongful Adoption," 67 Notre Dame L. Rev. 851 (1992).)
In Halper v. Jewish Family and Children's Service of Greater Philadelphia, 963 A.2d 1282 (Pa. 2009), the court further clarified the holding in Gibbs. In Halper, the plaintiffs adopted their son in 1964 through the Jewish Family and Children's Service of Greater Philadelphia. The adoptee had a long history with mental health problems, treatment, continuous drug abuse, poor social relationships and even suicide attempts. In 1979, the adoptee was hospitalized for depression, drug dependency and adolescent adjustment reaction following a suicide attempt. Thereafter, from 1980 through 1999, in order to gain insight into the adoptee's psychological issues, plaintiffs sought records from the adoption agency regarding the adoptee's birth mother and her medical background. Within the agency's records, the plaintiffs, for the first time, found a file on the adoptee's birth mother, which included a psychiatrist's letter indicating that she suffered from undifferentiated schizophrenia. The Supreme Court held that with regard to a claim for negligent misrepresentation, the duty arises only where the condition of the child was foreseeable at the time of placement, but that in a claim for negligent nondisclosure, the duty arises to fully disclose all non-identifying information about a child without any element of foreseeability.
Adoptive parents and their children need the protection of the courts from intentional and/or negligent conduct by adoption professionals when this conduct prevents the child and his or her adoptive parents from receiving the complete medical and/or social information necessary for the child to receive proper care and treatment. Such protection will deter future nondisclosure, compensate victims of intentional or negligent conduct and ensure continued confidence in the system.
Samuel C. Totaro Jr. is a partner in the Doylestown, Pa., law firm of Curtin & Heefner. He has been involved in more than 4,000 adoptions, representing agencies, birth parents and adoptive parents.
Hollis J. Fishman is an associate in the firm. Prior to joining the firm, she served as a law clerk at Mellon & Webster in Doylestown, Pa., where she worked on numerous family law and adoption cases.