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The Legal Definition of Adoption
means "To Take As Your Own" now read the article
below. It is not my own.
You ask me why I am against Adoption
well read on and then you will find out why I am
so.
Class Actions: Wrongful Adoption:
Fraud By Adoption Agencies
By Richard
Alexander
Introduction
The first
substantial recovery in California against a
county adoption agency for its failure to disclose
to adopting parents their adopted child's medical
and psychological history occured in Forter v. San
Mateo County. This adoption fraud case is not
unique. There are many equally tragic cases that
await the discovery of mental health professionals
and the efforts of trial lawyers to help these
families obtain the funding necessary for lifetime
care.
The Adoption Agency's Duty to
Disclose
The essence of an adoption fraud
case is contained in Michael J. v. L.A. City
Department of Adoptions (1988) 201 C. A. 3d 859,
876, which in recognizing an action for
misrepresentation and fraudulent concealment of an
adopted child's pre-adoption history, held that in
an adoption "there must be a good faith full
disclosure of material facts concerning existing
or past conditions of the child's health."
[Emphasis added.]
Full disclosure is
important because adopting parents are opening
their homes, their financial resources and their
hearts to a child and as a matter of basic
fairness are entitled to full disclosure. More
importantly, full disclosure by the adoption
agency ensures that a child needing prompt
intervention and treatment will receive it and
that untreated conditions which could be
aggravated can and will be resolved.
California law provides that no agency
shall place a child for adoption unless a written
report on the child's background, if available,
and, so far as ascertainable, the medical
background of the child's birth parents, has been
submitted to the prospective adopting parents and
the prospective adopting parents have acknowledged
in writing the receipt of such report. The written
report on the child's background shall contain all
diagnostic information which is known, including
current medical reports on the child,
psychological evaluation, and scholastic
information, as well as all known information
regarding the child's developmental history and
family life.
While vigorous advocacy for
the victims of adoption fraud can provide valuable
remedies, these cases are extremely challenging
from both a legal and factual perspective. Here
are some of the pitfalls to be avoided.
Timely File a Claim
As soon as the
child's parent suspects fraud by a public adoption
agency, a claim must be filed within six months to
preserve the parents' claims for damages for
lifetime support and within one year to preserve
the child's cause of action.
The time for
filing a claim against the public agency begins to
run as soon as a reasonable person should have
been on notice of governmental misconduct. This
defense is not summarily avoided because the issue
is factual and each new fact uncovered concerning
the child's history becomes a further piece of
defense ammunition to be advanced against the
plaintiff in light of all the surrounding facts.
The pitfall to be avoided is inadvertently
proving the defense in efforts to establish the
parents' and child's claim for damages for
emotional harm. While it may be true that the
parents and child have suffered over the years as
a result of the agency's misconduct, proving the
parents' damage case by emphasizing the bizarre
conduct of the child and the length of time it
continued also helps to establish the defense that
"anybody would have suspected" pre-natal injury,
pre-adoption abuse, and the like. In short,
because hindsight is perfect there is a natural
tendency to assume that the adopting parents
should have concluded that they have been
defrauded long before they learned the truth. So
keep in mind that while proving damages these same
facts will be argued by the defense in support of
its statute of limitations defense.
In
Forter the County repeatedly raised its
limitations defense throughout discovery hoping to
be able to develop enough facts to prove at trial
that the parents should have suspected something
was awry when their son's conduct began to become
unacceptable, which was long before they filed
their claim. It is reasonable to expect that this
will occur in every case. Since hindsight is
perfect, as the child's history of acting out
comes forward it is important to keep it in
perspective and within the context of the
challenges of helping an adopted child adjust,
often a lifetime process. Parents of adopted
children must always struggle with making
adjustments, and childhood conduct by itself
without the benefit of knowing the child's
history, medical background, and parental health
care history does not lead to any meaningful
action by parents. In addition, even with early
referral to a child psychologist, without an
accurate history the professional efforts of the
therapist are dramatically less effective.
Nonetheless, once the concealed history is
revealed the etiology becomes so clear and
compelling that it is easy for a lay person to
mistakenly conclude that Mom and Dad should have
suspected pre-adoption abuse, pre-natal alcohol or
drug abuse by the natural mother, or the birth
parents history of mental illness, and thereby
provide the adoption agency with a good defense.
An early claim disposes of this hazard.
As
soon as a parent suspects fraud by the placing
agency, a claim should be filed immediately. As a
practical matter, the real basis of the action
will not be provable until counsel examines in
deal the voluminous records created in every
public adoption. These documents are only
available with a court order once an action is
filed, so do not delay in filing a claim at the
very earliest moment because it is only after suit
that plaintiffs' counsel will be able to verify
the facts initially reported by the adopting
parents.
Plan for Substantial Case Costs
Preparing an adoption fraud case, like any
case involving damages in excess of a million
dollars, is expensive because of the need for
expert witness testimony. Knowing what resources
you will need will help you prepare and assure a
complete investigation before unnecessarily
committing funds to a case where a recovery is
problematic.
Forter v. County of San Mateo
required the testimony of the original treating
psychologist who first saw the plaintiff when he
was age three, the current child psychiatrist to
testify concerning his current condition,
prognosis, and the impact of the concealment of
his psychiatric history and delayed treatment, a
professor of social work on the failure to meet
the standard of care in the original placement of
the child, the treating pediatrician who had not
been provided with the child's psychiatric
records, a pediatric neurologist concerning the
importance of a complete history in diagnosing
childhood disorders, an adult psychiatrist
concerning the plaintiff's prognosis in the
absence of immediate special care, a
psychologist/educational specialist who prepared a
treatment lifeplan and presented the cost of
services for the balance of this teenager's life
expectancy, and an economist. There were several
thousand pages of records to read from
psychologists, several mental hospitals, Child
Protective Services, AFDC files, adoption files
and criminal records on the natural mother and
total discovery came to twenty lengthy
depositions. Pre-trial case costs advanced in
Forter, exclusive of attorney's time, totaled
$47,000. But for accepting the responsibility to
pay these expenses and the anticipation that
contingency fee would be approved by the court,
this child's future psychiatric needs would remain
unpaid.
Inquiries at the Initial Client
Meeting
Review all records and begin
writing a cogent history of every contact between
the adoption agency and the family before and
after placement. Your goal is to begin piecing
together the history so that a detailed chronology
will be readily available for reporting to your
experts, for motions, settlement conference
statement, and trial brief. In large part this
history will not be finished until after the
agency's adoption records have been produced.
At the initial meeting find out what type
of child the adopting parents initially requested
from the adoption agency when they filed their
application. What were they were told about the
child's and his/her natural parents' medical and
social history at the time of placement or
adoption as required by Civil Code Section 224s?
Is the child's condition today consistent
with undisclosed prenatal abuse, fetal alcohol
syndrome, pre-adoption physical, emotional abuse
or neglect, or inherited mental illness? Has there
been a failure to bond? Is the child abusive,
rebellious, out-of- control, sexually active, or
violent?
Has the adoption agency admitted
at any time that it failed to fully disclose or at
any time after the adoption made any additional
disclosure? Has the client demanded from the
agency all records which may indicate the cause of
the child's current condition? If so, when? How
long has the client's statute of limitations time
clock been ticking?
Has the failure to
disclose aggravated the child's condition or
delayed securing appropriate treatment?
Content of the Claim and the Complaint
Under current law, a claim is treated as a
pleading and must set forth, each party, each
legal theory upon which a recovery will be sought
and each item of damage.
It is important
to include as claimants both the child, the
adopting parents, and any siblings who have also
suffered as a result of the disruption to the
family home caused by the adopted child's
psychiatric condition.
A claim must
include each theory of liability and the
supporting facts. In short, say more rather than
less in explaining the basis of liability and the
damages claimed. Since the essence of the action
is delayed discovery, be especially careful to
plead the date your client first suspected they
had a cause of action against the adoption agency.
The Government Code Section 818.8 and
822.2 grants public entities immunity from
liability for negligent misrepresentation. The
immunities apply only to interferences with
financial or commercial interests, including
issuances of permits or licenses. Johnson v. State
(1968) 69 Cal.2d 782, 800. These immunities do not
shield defendants from liability for
misrepresentation or deceit in adoptions. Michael
J., supra, at 872. So while the claim must include
as grounds for liability willful misrepresentation
and concealment, in order to secure the resources
and participation of the agency's insurance
carriers in any eventual settlement, the claim and
the complaint to follow must plead the defendants'
negligent conduct, negligent infliction of emotion
harm and negligence per se for violating statutory
duties.
Claimed economic damages should
include: past and future mental health care for
life, including residential care; supervising
advocate for life; life time home care and
supervision; and lifetime lost wages for the
child.
Do not forget to include
non-economic, general damages for every claimant.
Although public entities as a matter of
law are not subject to punitive damages for
oppression and despicable misconduct, public
employees can be held for punitive damages. So
while punitive damages need not be listed in the
claim, be sure to include a punitive damage claim
against the individual tortfeasors in the final
complaint.
Relinquishment is Not the
Exclusive Remedy
The defendants will claim
that the parents exclusive remedy is to relinquish
their child under Civil Code Section 228.10 which
provides that a petition to relinquish " shall be
filed within five years after the entering of the
decree or order of adoption." In most cases, the
five year statute will have run years ago and the
agency will claim it is insulated from suit.
This argument is flatly contradicted by
the express language of Section 228.10 itself.
There is no mention nor hint in Section 228.10,
nor in any case, that it was intended to be an
exclusive remedy.
The plain wording of the
statute is that relinquishment is one option. The
word used is "may:" "a petition setting forth
those facts may be filed by the adoptive parents"
and "If those facts are proved to the satisfaction
of the court, it may make an order setting aside
the decree or order of adoption." There is no
mandatory language used in Section 228.10, and be
sure to explain to the court when the defendant's
motion is heard that the word is "may" not "must."
The fact is that Section 228.10 (formerly
Section 227(b)) dates back approximately fifty
years. Yet claims for monetary damages have been
approved for concealment and misrepresentation in
the area of social services. In reversing Summary
Judgment, the Michael J. Court specifically held
at 875:
Under these circumstances, and
recognizing deliberate concealment and
misrepresentation would be actionable, we hold
that Summary Judgment is improper. (emphasis
added)
Thus, case law approves of claims for
damages and this statute offers no support for a
wishful exclusive remedy defense. If the adoption
statutes are to be liberally construe d to promote
justice and the welfare of the children, the
statutes cannot be tortuously construe d to
insulate wrongdoers who conceal and misrepresent
all to the harm of the child and their adopting
parents.
Defendants will also claim in
support of an exclusive remedy claim that money
damages awards will cause more children to be
deemed "unadoptable" because they might later
develop mental illness.
The effect of
exposure to money damages awards is to force full
disclosure of information to the adopting parents
in compliance with the law, and discourage the
reprehensible concealment and misrepresentation
seen in the instant case. After all, "just as
couples must weigh the risks of becoming natural
parents, taking into consideration a host of
factors, so too should adoptive parents be allowed
to make their decision in an intelligent manner."
Michael J., supra, footnote 10. Adoptive parents
should not be left to make the life-long decision
of adoption with anything less than all the
available information on the child.
If the
exclusive remedy argument were the law, adoption
agencies could routinely withhold vital
information from adoptive parents with impunity.
Civil Code Section 224s would be rendered
meaningless. Defendants could withhold information
to facilitate the adoptive parents' agreement to
adopt, and if the situation did not work out or
the concealed information became known, the
adoptive parents could only petition to vacate the
order of adoption, but only if the adoptive
parents petitioned within five years. Beyond five
years the adoptive parents and the child would
have no remedy for what will inevitably become a
life-long tragedy for both. That is the true
social cost of the concealment and
misrepresentation that adoption agencies seek to
protect from liability with their absurd exclusive
remedy argument.
Conclusion
Adoption fraud cases couple claims for
psychiatric injuries to a child, with the claims
of parents who have been emotionally and
financially brutalized by an adoption that was
expected to bring happiness to their home and
family. Losing the expectation of a happy child
and a wholesome home life and having it replaced
with wholesale grief is an especially tragic
injury to be inflicted on parents who opened their
homes, families, financial resources, and their
hearts to a needy child. The lifetime damage
inflicted on children, leaving them only with the
prospect of being anti-social and unemployable due
to emotional injuries and damaged personalities,
obviously leaves them as prime candidates for
criminal activity, prosecution and imprisonment.
The strength of the tort law is that it
provides the jury a public forum to express the
community's standard of accountability. In the
wrongful placement of children for adoption, there
are no emotional or psychological impediments to
the jury's unleashing a roar of disapproval, once
the legal hurdles have been overcome. Obtaining a
recovery for a wrongfully adoption placement is
requires informed and extremely vigorous advocacy.
Current legal impediments to assure these
victims full and complete psychiatric care should
be removed. Our least protected citizens, orphaned
children, deserve the best possible care by county
adoption agencies and when that does not occur our
Courts and Legislature should provide full and
complete remedies to hold perpetrators of adoption
fraud fully accountable.
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