Adoptee Access to Records Virginia Law by rzf16027

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									                 WRONGFUL ADOPTION



                           BY



CARA CASALINO, TRAECY HALL, WILLIAM IVINS, MAHAK NAYYAR




                     Government 439A

                 Professor Wayne McIntosh


                       16 May, 2000




                            1
                                          Abstract

       This paper deals with the legal rights of parents and children, and the

responsibility of adoptions agencies in regards to cases of wrongful adoptions. In

examining the hypothetical wrongful adoption case of the Doe family, the authors seek

to establish that, legally and ethically, adoption services have a responsibility to give full

disclosure of information pertinent to the well being of the adoptee and those seeking to

adopt him or her. Further, the case is made that the adoption agency’s involvement

must not end with the adoption but rather continue on in the interest of the child.

       To establish the degree of responsibility of adoption agencies, the paper covers

four main areas in which the adoption may become wrongful given action, or inaction,

on the part of the agency. First, the authors explore cases and controversies stemming

from the agency’s duty to disclose information regarding the physical and mental well

being of the adopted child. Second, the potential negligence of the adoption agencies

in endangering the physical and mental health of the family and the adoptee are

considered. Third, the potential liability of the agency to financial damages due to

prospective parents’ reliance on bad information is considered. Finally, the question of

the adoptive agency’s duty to extend services beyond the finalization of the adoption is

raised. In establishing their central thesis on the importance of honesty and a good

faith effort to provide for the well being of adopted children, the authors review selected

case histories and legal precedent on the issue.




                                              2
                                         Introduction

          Mr. and Mrs. Doe reside in Maryland and adopted a ten year-old boy, Johnny,

from a public adoption agency. Johnny was severely abused in his early childhood and

traumatized. Eventually, Johnny became so unruly he began exhibiting uncontrollable

behavior acting out violently against his siblings.

          For the safety of Johnny and the Does family, it was decided that Johnny should

be institutionalized in a treatment center. The treatment center is charging the Does

$600 a month for Johnny residing at the center. This fee places a severe financial

burden upon the Does, which threatens their economic welfare. In addition to this

financial burden, the Does have suffered severe emotional trauma since they hoped

that Johnny’s adoption would bring happiness and a wholesome home life to their

family.

          At the time of the adoption, the Does were not given access to Johnny’s full

records. Based on our research, the adoption agency fraudulently concealed

information whereby displaying negligent conduct and misrepresentation of Johnny.

Therefore, the Does are entitled to sue the government for wrongful adoption because

the adoption process was handled by a public agency. 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.



                                               3
       We have researched wrongful adoption and found that the Does could raise the

following issues: the adoption agency’s duty to disclose records; the mental and

physical well being of the child and adoptive parents; economic damages; and the

adoptive agency’s duty to extend services beyond the finalized adoption.

       To begin, we examined Federal and Maryland State laws. The Uniform Adoption

Act (1994), a Federal statute, sets forth guidelines for the adoption process. Under

Article 2 Section 2-106 Disclosure of Information on Background, one finds federal

regulations that mandate specific information that must be produced before a

prospective parent accepts physical custody of a minor. The specific information that is

required is as follows:

          (1) a current medical and psychological history of the minor, including an

          account of the minor’s prenatal care, medical condition at birth, any drug or

          medication taken by the minor’s mother during pregnancy, any subsequent

          medical, psychological or psychiatric examination and diagnosis, any

          physical, sexual, or emotional abuse suffered by the minor, and a record of

          any immunizations and health care received while in foster or other care; (2)

          relevant information concerning the medical and psychological history of the

          minor’s genetic parents and relatives including any known disease or

          hereditary predisposition to disease, any addiction to drugs or alcohol the

          health of the minor’s mother during her pregnancy, the health of each parent

          at the minor’s birth.

       Next, the Maryland State law, the Annotated Code of Maryland Family Law

Section 5-303, states,“ the General Assembly finds that the policies and procedures of




                                            4
this subtitle that concern adoption are socially necessary and desirable.” One of the

purposes of the subtitle is to “protect adoptive parents: by providing them information

about the child and the child’s background.” Section 5-328 states that “the person

authorized to place a minor child for adoption shall compile and make available to a

prospective adoptive parent and to the adoptive parent a pertinent medical history of the

natural parents of the minor child.” Section 5-329.1 states that “subject to the provisions

of subsection (b) of this section, access to medical or dental records of an adopted

minor may not be denied to the minor’s parent because the parent is an adoptive

parent.”1

        The Federal and State laws described above, state with certainty that a medical

background report needs compiling and must be produced to the prospective adopting

parents. These laws leave no doubts or questions that an adoption agency, public or

private, has a duty to disclose records. If they violate this duty then they have broken

the law and need to be held responsible for their actions.

        With that, let’s examine the Does issue of the adoption agency’s duty to disclose

medical and psychological records.



The Adoption Agency’s Duty to Disclose Medical and Psychological Records

        In the case of Burr v. Stark County Board of Commissioners,2 the Ohio Supreme

Court found that the adoption agency has a duty to disclose all medical and social

information to the prospective adoptive parents. The Burrs sued the adoption agency


1
 The Annotated Code of Maryland, Family Law Section. Virginia: LEXIS Law Publishing, 1999.
2
 Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986),
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).



                                                     5
under a “Complaint in Fraud…for Wrongful Adoption,” and won the case after proving

each of the six elements of the common tort law of fraud. Those six elements are as

follows:

1) A representation, or where there is a duty of disclose, concealment of a fact

2) Which is material to the transaction at hand

3) Made falsely, with knowledge of its falsity

4) With the intent of misleading another into relying upon it

5) Justifiable reliance upon the representation or concealment

6) Resulting injury proximately caused by the reliance

        The Burrs adopted a child believing that the baby was healthy. The adoption

agency, in addition to attesting to the healthy state of the baby, also told the Burrs that

he was the son of a healthy, 18-year-old woman who couldn’t care for the child due to

constant job relocation. The baby, now formally a member of the Burr household, grew

up with various illnesses and mental problems. In school, he was classified as

“educable mentally retarded.”3 In high school, he was diagnosed with Huntington’s

Disease-a fatal genetic disorder. It was then that the Burrs discovered the truth about

their son’s history, and the history of his biological parents. The mother was a 31-year-

old mental patient. The caseworker also failed to mention that the child had been

abused, and was placed in two foster homes. This was no healthy baby. He suffered




3
 Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986),
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).



                                                       6
from a fever at birth. A court expert testified that “his family’s background and medical

profile made him at risk for [Huntington’s] disease.”4

        The adoption agency argued that there was no obligation on their part to disclose

the medical and social history of the child and birthparents because at the time of the

adoption, the statute in effect did not require disclosure of this information to adoptive

parents. However, the court stated that future cases in wrongful adoption should be

based on whatever statute applies at the time of the adoption. Under Ohio Statutory

Law, “amendments to Ohio’s adoption statute have reflected a national trend towards

disclosing non-identifying information about the adopted child to the adoptive

parents…Non-identifying information includes the social and medical history of the birth

parents and the child.”5 Today, the Ohio State law states “the agency report made prior

to the adoption shall include the social and medical history of the biological parents.

Only the adoptive parents shall have access to this information about the biological

parent…”6

        Ohio’s history of amendments shows the above-mentioned trend. The 1976

amendment to the Ohio adoption statute mandated that an agency investigate, but not

disclose, the medical and social background of a child. The 1978 amendment gave the

adoptive parents a right to access the medical and social histories of both the child and

the biological parents. The 1985 amendment required a more extensive investigation by

the agency into the medical and social histories of child and parents. It also made the


4
  Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986),
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).
5
  Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986).
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).
6
  “Ohio Revised Code Annotated Sections 3107.01 to 3107.44 (1998)”, National Adoption Information
Clearinghouse. http://www.calib.com/naic/laws/oh.htm. (Date visited site March 8, 2000).



                                                      7
information more easily accessible to the adoptive parents.7 Histories now must include

ethnic, racial, religious, marital, educational and cultural backgrounds as well as talents,

hobbies and work experience. All health problems and conditions that are significant

factors relating to pregnancy and birth must also be included and disclosed to adoptive

parents.8

        This case is similar to the Does, in that the Burrs like the Does were not given full

access to the medical records of the child nor the biological parents and, the Does can

prove the six elements of the tort of fraud. That 1) concealment of fact, or

representation, which was 2) material to the adoption, 3) was made falsely by the

agency. The agency was aware of the extent to which Johnny was traumatized, and

they concealed it, or represented it as less severe 4) with the intent of misleading the

Does into relying on it for the adoption to continue. It is 5) justifiable that the Does would

rely on the adoption agency’s information, and therefore would go through with the

adoption 6) resulting in damages to the family ($600/month treatment, emotional

damages).

        In the case of Jackson v. State of Montana,9 originally filed with the District Court

of Montana, where the decision went in favor of the State,10 the Jackson’s appealed to

the Supreme Court of Montana, which overturned the State’s decision.11 Eugene and


7
  Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986).
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).
8
  Burr v. Board of County Commissioners of Stark County, 23 Ohio St. 3d 69 (1986).
http://www.fpsol.com/adoptions/burr.html. (Date visited site March 8, 2000).
9
  Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35. http://www.lexisnexis.com. (Date visited
site March 8, 2000).
10
   Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35. http://www.lexisnexis.com. (Date visited
site March 8, 2000).
11
   Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35. http://www.lexisnexis.com. (Date visited
site March 8, 2000).



                                                       8
Peggy Jackson adopted Aaron, a two-year old child in 1984. Wallace and Petek, two

resource workers for the adoption agency “helped” the Jacksons in the adoption

process. The Jacksons were approved for adoption and met with Petek and Wallace.

“During their visit, the Jacksons specifically asked Wallace and Petek whether there

was any history of mental illness in Aaron’s family…Neither Wallace nor Petek

disclosed the content of these evaluations to the Jacksons in response to the

inquiry…Wallace generally referred to the documents in his possession to answer the

Jacksons’ questions during the visit but did not provide them with copies and did not

disclose the various psychological evaluations.”12 In 1987, the Jacksons discovered that

Aaron had behavioral problems. Aaron was not attentive, often acting disruptive,

frustrated, and angry. Aaron was diagnosed with pervasive developmental disorder,

learning disorder, and attentive deficit hyperactivity disorder. Had the Jacksons known

of Aaron’s medical history, they would not have adopted Aaron.

        The Jacksons sued the State for negligent action, breach of contract, negligent

misrepresentation, negligent disclosure, and negligent supervision. Did the State

negligently misrepresent, and fail to disclose to them material facts of Aaron’s parents

and did the State have a common law duty to the Jacksons to disclose or negligently

provide information? Justice Regnier ruled that the State assumes a duty to provide

background information of the child and refrain from negligently misrepresenting

information to the Jacksons. “To require anything less from the State than the exercise

of due care in the dissemination of information in its possession to prospective parents



12
   Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35. http://www.lexisnexis.com. (Date visited
site March 8, 2000).



                                                       9
would be simply unacceptable.”13 Although, this produces a burden on the State, this

burden is justifiable to make a decision of adoption thought out and informative.

        In the Does case, the State withheld information from the adoptive parents.

Although, the Does knew Johnny had been abused and in and out of foster homes, they

did not have access to his full medical records which acknowledged Johnny being

subjected to “severe” abuse and therefore were denied pertinent information to make a

decision of adoption “thought out and informative.” The State failed to uphold their duty

to provide background information to the Does. Therefore, the State misrepresented

information to the Does and are guilty of fraudulently misleading them to their detriment.

        Next, we contacted an adoption agency located in Silver Spring, Maryland,

Adoptions Together, Inc., to inquire whether they provide information to prospective

adopting parents specifying the availability of medical and social records of the adoptive

child. Adoptions Together, Inc. provides a packet on domestic adoptions. In this packet,

a clause titled “Medical Risks” discusses medical and social histories of the birth

parents and child being placed by the agency. It states that “ALL medical information

available on a child will be provided to the adoptive family”14. An adopting family should

expect nothing less than to receive full disclosure of all medical information. Like

Adoptions Together, Inc., most adoption agencies provide the same type of domestic

adoption packet with the same clause.

        Also, to ensure this guarantee of receiving all medical information on a child by

an adoption agency, the U.S. Department of Health and Human Services,


13
   Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35 (Regnier Opinion).
http://www.lexisnexis.com. (Date visited site March 8, 2000).
14
   “Domestic Adoptions,” Adoptions Together Inc. , pg. 5



                                                      10
Administration for Children, Youth, and Families, Children’s Bureau provides Program

Instructions to all States that inform and instruct agencies of amended Acts such as

Public Law (P.L.) 101-239. P.L. 101-239 amended section 475(1) of the Social Security

Act (SSA) to include in the definition of a “case plan” the requirement that a foster

child’s case plan must include certain specific information regarding their educational

and health status. In addition, a subparagraph was added to section 475(5) of the SSA

to ensure that the child’s health and education records are reviewed and updated at the

time of each placement of the child in foster care, and that such records are supplied to

the foster parent or foster care provider with whom the child is placed. Amendments to

section 475(1) of P.L. 101-239 add that “a written document must include at least the

following: (C) To the extent available and accessible, the health and education records

of the child, including--…(vi) the child’s known medical problems…(viii) any other

relevant health and education information concerning the child determined to be

appropriate by the State agency.”15 In requiring medical records to be updated on a

continuous basis, eliminates the problem of medical information not being disclosed to

an agency. Consequently, agencies are aware of all pre-adoption medical histories of

children they represent and acquire up-to-date records regularly for the purpose of

disclosing the information to anyone taking the child into their home. Therefore, the

information is available for disclosure.

           Next, we will examine the mental and physical well being of the Does and Johnny

being harmed.




15
     “Program Instruction.” U.S. Department of Health and Human Services. Log No. ACYF-PI-90-11. May 31, 1990.



                                                       11
The Mental and Physical Well Being of the Does and Johnny Harmed

        Our research found that the adoption agency’s negligent conduct to fraudulently

conceal Johnny’s pre-adoption history was a negligent infliction of emotional harm

placed on the Does and Johnny. 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. Without the entire record being disclosed, the adopting parents and child will

suffer for years as a result of the agency’s misconduct.

        In Forter v. San Mateo County,16 the County repeatedly raised a statute of

limitations defense hoping to be able to develop enough facts to prove that the parents

should have suspected something was awry when the child’s conduct began to become

unacceptable, which was long before the Forters filed their claim. It is reasonable to

expect that this will occur in every case. Since “hindsight is perfect,”17 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 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



16
   Alexander, Richard. “Wrongful Adoptions: Fraud By Adoption Agencies.” The Consumer Law Page: Articles:
1999. http://consumerlawpage.com/article/adopt.shtml. (Date visited site March 8, 2000).
17
   Alexander, Richard. “Wrongful Adoptions: Fraud By Adoption Agencies.” The Consumer Law Page: Articles:
1999. http://consumerlawpage.com/article/adopt.shtml. (Date visited site March 8, 2000).



                                                     12
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.

        A case that demonstrates the importance of mental well being is Juman v. Louise

Wise Services.18 In 1966, Martin and Phyllis Juman adopted Michael, who they thought

was a healthy child, a conclusion reached after many consultations with the Louise

Wise Services Adoption Agency.19 Michael grew up to suffer severe mental illness,

beginning at age 16. There was no end to the number of hospital visits and he was

diagnosed with various forms of mental illness, including depression, manic depression

and schizophrenia. These disorders ultimately led to his suicide.20

        Before taking his own life, Michael discovered from a relative of his birth mother

(whom he tracked down) the reason behind his angst. He found out what the adoption

agency had failed to inform his adoptive parents: the birth mother had suffered from

schizophrenia, requiring long-term hospitalization, and a lobotomy.21

        The Jumans sued the adoption agency for wrongful adoption, claiming that had

the adoption agency disclosed the information, they would not have adopted Michael

and then their pain would have been avoided. Although “the damages recoverable for

fraud do not include emotional distress” there is a connection between that and the sixth

element tort of fraud, that is, “a resulting injury proximately caused by the reliance.”22 By


18
   Juman v. Louise Wise Services, 608 N.Y.S.2d612 (Sup. 1994). http://www.lexisnexis.com. (Date visited site
March 17, 2000).
19
   Juman v. Louise Wise Services, 608 N.Y.S.2d612 (Sup. 1994). http://www.lexisnexis.com. (Date visited site
March 17, 2000).
20
   Juman v. Louise Wise Services, 608 N.Y.S.2d612 (Sup. 1994). http://www.lexisnexis.com. (Date visited site
March 17, 2000).
21
   Juman v. Louise Wise Services, 608 N.Y.S.2d612 (Sup. 1994). http://www.lexisnexis.com. (Date visited site
March 17, 2000).
22
   Juman v. Louise Wise Services, 608 N.Y.S.2d612 (Sup. 1994). http://www.lexisnexis.com. (Date visited site
March 17, 2000).



                                                       13
concluding that the Jumans justifiably relied on the information provided by the adoption

agency to adopt Michael, it is also duly appropriate that the adoption agency be held

responsible for the pain they endured as a result of his suicide. The mental well being of

the adoptive parents was severely affected by the adoption agency’s failure to disclose

the records of the adoptive parents. Likewise, the child was physically affected. Had his

parents’ history of mental illness been made known early on, preventive treatment may

have been administered.

       Recognizing the affects of failure to disclose information to adoptive parents is

crucial to the Does case. The pain and suffering caused by the alleged wrongful

adoption is worth investigation. The parents and siblings suffered emotional and

physical abuse as a result of the adopted son. Had the agency informed the Does of the

child’s history and the history of his biological parents, that suffering would not have

occurred. The adoption agency’s negligent actions caused the parents and the child to

suffer. Therefore, our research concludes that, like the Jumans case, the adoption

agency should be held responsible for the emotional pain the Does are enduring.

       Now, we look at the issue of economic damages the Does could raise.


Economic Damages Suffered

       In addition to mental and emotional distress, parental victims of wrongful

adoption suffer from financial and economic distress. We must remember that in a

wrongful adoption case, the child is wrongfully represented. For example, a child can be

defined as being “healthy” when in fact he or she exhibits behavioral problems. In many

instances as we have seen, the problems a child can exhibit go farther and deeper than

behavior, and in order to save the life of a child, adoptive parents must obtain medical



                                             14
treatment, putting them in desperate need of financial assistance. As we have seen,

had adoptive parents known about the true behavior of a child and the financial and

emotional burden endured, they would at least have the option of whether or not they

want to experience such burdens.

        In the case of Michael Et Al., v. Los Angeles County Department of Adoptions,23

Mary adopted Michael, a young boy who the County labeled as "hard to place.” Michael

suffered from Sturge-Weber Syndrome and had a port wine stain on his upper torso.

Mary inquired about the port wine stain and was never given an explanation.

        Furthermore, the medical examination on Michael at the time of his birth did not

state the disorder from which he suffered. However, upon birth Michael's doctor noted:

"Medically, this has been noted as a port wine stain, which will probably not fade as the

baby grows older. However, a doctor would not make a definite prognosis for the

child."24 Judge Fields ruled that the mere significance that the doctor did not make a

prognosis for the child suggests nondisclosure. In addition, it proves that Mary had no

way of knowing that the child she was about to adopt was quite ill. In fact, Mary stated

that she would not have "adopted Michael if she had known that the stain was a

manifestation or symptom of this disorder."25

        Now, because of nondisclosure, fraud, and the common law of deceit, Mary is

financially insecure. She has suffered emotional and financial distress because of the

adoption agency’s actions. "Adopting a child is an enormous financial and emotional


23
   Michael J. Et Al. v. Los Angeles County Department of Adoptions, CA.496, 247 Cal. Rptr. 504, 201 Cal. App. 3d
859 (1988). http://www.fpsol.com/adoption/michaelj.html. (Date visited site March 17, 2000).
24
   Michael J. Et Al. v. Los Angeles County Department of Adoptions, CA.496, 247 Cal. Rptr. 504, 201 Cal. App. 3d
859 (1988). http://www.fpsol.com/adoption/michaelj.html. (Date visited site March 17, 2000).
25
   Michael J. Et Al. v. Los Angeles County Department of Adoptions, CA.496, 247 Cal. Rptr. 504, 201 Cal. App. 3d
859 (1988). http://www.fpsol.com/adoption/michaelj.html. (Date visited site March 17, 2000).



                                                       15
act. The agency should have been trustworthy and a trustworthy society benefits

everyone. An adopting parent needs complete medical background information on both

the adoptee and the adoptee's birth parents, not only to secure timely and appropriate

medical care for the adoptee but to make vital, personal, health, and family decisions."26

For these reasons, Mary has suffered economic distress. She has high medical bills and

is economically unable to take care of Michael.

        The Does, like Mary, are suffering economically. They can no longer pay their

mortgage due to the $600 a month fee for the treatment center. They are in jeopardy of

losing their home. Therefore, our research shows that the Does are entitled to economic

damages caused by the adoption agency’s negligence.

        Lastly, we examine the final issue the Does can raise: the adoptive agency’s duty

to extend services beyond the finalized adoption.


Adoptive Agency's Duty to Extend Services Beyond The Final Adoption

        The adoption agency's first and foremost priority should be that of the adoptive

child and the well being of that child. An adoption agency is an institution to provide a

nurturing and loving home to a child in need. Therefore, such an agency has an

obligation and duty to not only provide truthful information to the parties involved, but

also extend their services beyond the finalized adoption. Any inaccurate or misleading

information is the lack of due care on the part of the adoption agency. Again, as

previously mentioned, in the case of Jackson v State of Montana, where the Uniform

Adoption Act of Montana imposed a duty on the state to disclose all of an adoptive


26
  Michael J. Et Al. v. Los Angeles County Department of Adoptions, CA.496, 247 Cal. Rptr. 504, 201 Cal. App. 3d
859 (1988). http://www.fpsol.com/adoption/michaelj.html. (Date visited site March 17, 2000).



                                                       16
child's information regarding the child's family background, the imposition places a

necessary burden on the State to act responsible and with caution. This burden, so to

speak, does not disappear once a child has been put into custody of adoptive parents,

but carries through and beyond the adoption process. The agency is the liaison

between the child and the adoptive parents. Many adoptive parents would not adopt a

child if the child possesses severe medical problems since it would involve emotional

and medical trauma. In the case of Jackson v. State of Montana,27 why did the resource

worker, Wallace, not provide the Jacksons with copies of Aaron's medical status? Why

did the resource worker inform the Jacksons that Aaron's biological mother was

"healthy" when in reality the mother spent most of her pregnancy at the Women's

Correctional Center at Warm Springs, Montana while incarcerated and was diagnosed

as “emotionally immature, inappropriate, retarded,” and in need of counseling? While

the Jacksons requested and questioned the information they were being told, they were

being lied to from day one. Aaron had behavioral problems and his mother was anything

but healthy. It is a misrepresentation on the part of the adoption agency and a

representation of fraud that caused harm, which needs to be accounted for after the

final adoption of the child. In our opinion, agencies need to act in good faith because

they deal with innocent children and good-hearted parents. They need to honor their

integrity of providing proper social services for the good of all people involved.

           Parents have an obligation to care for their child. “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"


27
     Jackson v. State of Montana, MT 1998 46; 287 Mont. 473; 956 P.2d35 (Regnier Opinion).



                                                        17
(Burr v. Board of County Commissioners of Stark County. (1986), 23 Ohio St. 3d 69).

Parents cannot make an “intelligent decision” if they are not given intelligent information.

Thus, not only should adoption agencies be obligated to provide information and act

with care throughout the adoption process, but also need to recognize the

consequences when they do not act with care. Their duty then must extend beyond the

final adoption process when problems arise due to their actions during the process. The

bottom line is that adoption agencies need to be held accountable for their actions after

the final process when problems occur.

        The Does allege misrepresentation and concealment of information concerning

Johnny’s abuse. “The adoption process is not a commercial transaction, such as leasing

and purchasing property or contracting for a pension.”28 There is no immunity that

shields the County from liability for misrepresentation and deceit in the social service

area, designed to serve the interests of society by acting in the best interests of

children. Fraud is not in the best interest of a child and once the fraudulent act is

discovered due to harm caused by the act, the party committing the act becomes liable

at that time.

        According to the North American Council on Adoptable Children, in 1992, the

Department of Health and Human Services’ Children’s Bureau (DHHS) released an

official statement allowing parents to receive adoption assistance benefits after the

finalization of an adoption. Specifically, Policy Interpretation Question (PIQ) 92-02

states the adoption assistance agreements can be negotiated under “extenuating



http://www.lexisnexis.com. (Date visited site March 8, 2000).
28
   Michael J. Et Al. v. Los Angeles County Department of Adoptions, CA.496, 247 Cal. Rptr. 504, 201 Cal. App. 3d
859 (1988). http://www.fpsol.com/adoption/michaelj.html. (Date visited site March 17, 2000).



                                                       18
circumstances.” DHHS specified the following as one of the extenuating circumstances:

“Relevant facts regarding the child, the child’s background, or the biological family were

known, but were not presented to the adoptive parents prior to finalization” of the

adoption. According to PIQ 92-02, under certain conditions, families with special needs

children who have “already finalized their adoptions may request a fair hearing to

implement adoption assistance.” Therefore, the Department of Health and Human

Services’ Children’s Bureau through PIQ 92-02 confirms the adoption agency’s

responsibility to extend beyond the final adoption. If an agency acts in such a manner

as to misrepresent a child, leading them to their detriment, the adoption agency’s

conduct causes the loss whereby making them liable for their actions during the

adoption process.

       Finally, according to Margaret Swain, Esquire, an adoption attorney in Baltimore,

Maryland, the standard for adoption agencies is supposed to be what is in the best

interest of the child. Disclosing all pre-adoption information is what’s best for the child. It

allows the adopting parents to seek necessary treatment for the child immediately. If the

adoption agency has failed to act in the best interest of the child, they are accountable

for any harm caused by their negligence. Therefore, our research indicates that the duty

of the adoption agency extends beyond the final adoption process.

                                         Conclusion

       Through our research, we conclude that the Does have legal standing to sue the

government (public adoption agency) for wrongful adoption and deserve compensation.

The damages they suffered, both physically and emotionally, are the direct result of

fraudulent misrepresentation of information regarding the medical records (including the




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social history) of Johnny and his biological parents. In all the cases we examined, the

State has the responsibility to act with morals. Children are innocent. A child's life and

well being is at stake. Adoptive children are put in a position where they are desperate

to find a loving and nurturing home. It is not the child's fault that the biological mother

was incarcerated during pregnancy as in Jackson v. State of Montana or that a child

should be driven to suicide as in Juman v. Louise Wise Services. Adoptive parents

exhibit a warm heart to open their lives to an adoptive child in need. Therefore, adoptive

agencies should and are capable of acting within the same line of ethics, values, and

morals. It is not as if adoptive agencies do not have the resources or means to provide

truthful information. As shown, Federal and State laws support the obligation of the

adoption agency to disclose medical and psychological records. The trend discussed

earlier, moves toward more complex and thorough investigations into the health and

nature of a child, as well as, the parents before the adoption, and with complete

disclosure of that investigation to prospective adoptive parents. The case law, as we

have shown, also supports this procedure. The overwhelming evidence shows that the

Does should win in a suit against the government for wrongful adoption.




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                         BIBLIOGRAPHY OF WEB SOURCES

Alexander, Richard. “Wrongful Adoptions: Fraud By Adoption Agencies.” The Consumer
  Law Page: Articles: 1999. http://consumerlawpage.com/article/adopt.shtml.

Consumer Law Page, http://consumerlawpage.com/article/adopt.shtml This
  site provides general information on wrongful adoptions and other relevant
  adoption sources.

Findlaw, http://www.findlaw.com. This site provides relevant precedent legal
   cases and adoption laws.

Legal Information Institute, http://www.secure.law.cornell.edu/topics/adoption.html
  This site provides Federal and State statutes and regulations. Site unavailable as of
  7/15/2000 .

Lexis Nexis, http://www.lexisnexis.com. This site provides relevant precedent
  legal cases.

National Adoption Information Center,
  http://lawschool.lexis.com/weblec/family/10.htm This site provides summaries
  of all 50 states adoption statutes.

                                  OTHER SOURCES

Adoptions Together, Inc. Domestic Adoption Program. 10230 New Hampshire Avenue,
  Suite 200, Silver Spring, Maryland 20903. 301-439-2900. April 7, 2000.

North American Council on Adoptable Children. Program Instruction. 970 Raymond
  Avenue, Suite 106, St. Paul, Minnesota 55114. May 31, 1990.

Swain, Margaret E. Interview. The Law Offices of Margaret E. Swain. 6301 North
  Charles Street, Suite 2, Baltimore, Maryland 21212. 410-583-0688. March 30, 2000.




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