Wrongful Adoption and Agency Liability, Page 3

Negligence

With recognition of wrongful adoption as a cause of action, courts began to find agencies liable for negligent conduct that, unlike the cases of fraud above, was clearly unintentional or possibly unintentional.

The first case to recognize wrongful adoption based on negligence was decided by the Wisconsin Supreme Court in 1989, in the case Meracle vs. Children's Service Society. In this case, a couple contacted the agency, and specifically requested a child without disabling conditions or diseases. The agency placed with this couple a child whose grandmother had died from Huntington's disease, but advised the parents that the child had no more chance of developing the disease than any other child because the disease was transmitted between successive generations and birth father had tested negative. Several months later the parents learned that no reliable test had been developed for determining the inheritance of Huntington's disease, and the child subsequently was diagnosed with the disease. The adoptive parents sued the agency on the basis that the agency had incorrectly stated that the child was not at an increased risk of developing Huntington's disease.

The court agreed, finding that once an agency voluntarily supplies information, the agency has a duty to accurately represent any implications of that information. Although the court ruled in favor of the parents, the ruling added that adoption agencies are under no affirmative duty to disclose health-related information; in order to avoid liability, however, agencies "must refrain from making affirmative misrepresentations about a child's health."

Elements of Wrongful Adoption

The decision against an agency with the most severe consequences is the finding of fraud on the part of placement workers, as illustrated in Burr and Juman above. Elements of fact which may lead to a finding of fraud include the presentation of false statements of material fact (such as health or social history) which are either known to be false or believed to be false, or with demonstrated recklessness as to whether the information is true or false. These statements must be provided to the family with the intent on the part of the agency to induce or encourage an action, such as adoption, by the family. When there is an action on the part of the other party, who is relying on the information provided by the agency, and subsequent harm, such as economic or health problems, or mental or emotional distress, comes to the other party, fraud may be found by the court. A lesser, but no less serious decision, is the finding of negligence on the part of the agency. In order to find negligence on the part of an agency, a court must find that a relationship exists between the agency and the family, and that a duty (that is, truthfulness) is owed by one party to another. When there is a breach of that duty, through either accident or oversight, and the other party suffers injury from the breach of the duty, the court may find that the agency has been negligent.

There may be negligence if the information is either not complete or not accurate, as in Meracle above. Negligence can be proven in a circumstance where information could have been given that could have had bearing on a family's decision to adopt, even if the agency did not appreciate the gravity of the information. Likewise, when an agency correctly disclosed known information, but then volunteered additional information, such as an informal medical opinion, that was not correct, the court may find the agency negligent for offering inaccurate information.

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Credits: Child Welfare Information Gateway (http://www.childwelfare.gov)