Wrongful Adoption and Agency Liability, Page 4

Policy Issues

There are significant differences in the policy issues surrounding wrongful adoption for public agencies and for private agencies. While in public agencies the majority of the children meet the definition of "special needs," most American-born children placed by private adoption agencies are newborns, and expectations are that the child will be born without significant health problems. The majority of children placed internationally do have health problems; however, these problems are often very specific and different than the health problems faced by children in America. Additionally, different kinds of information are available about the birth parents of children placed by public and private agencies. While there may be little or no information about the prenatal history or birth conditions of a child placed by a public agency, these pieces of information may be readily available to workers at a private agency.

In the past, several reasons have been proffered for the refusal or failure on the part of an agency worker, either public or private, to disclose information about a child's background. There may be a fear, founded or unfounded, that the child will not be permanently placed with an adoptive family if his full history is know. Staff may not have been sufficiently diligent in their efforts to obtain all relevant and pertinent information from the birth relatives. Agency staff may not be able to understand, interpret, or explain complicated medical information, either from the family or from other child care staff. Other factors, such as understaffing, high turnover, or lack of staff training, can cause the communication of important information to break down.

While all of these reasons may be understandable, none of these are justified reasons for refusing or failing to provide information to a prospective adoptive family. Any one of these factors may lead to a finding of liability against the agency in a placement.

Policy Issues Related to International Adoption

The extension of the principle of wrongful adoption to cases of international adoption reflects the extension of the focus and interest in international adoption in the last decade. The few cases of case decisions, however, do not reflect a unified development for this application of the law. The common thread in the cases has been the avoidance of liability on the part of the domestic agencies placing foreign-born children by clearly communicating in writing the limitations of the quantity and reliability information made available to the agencies. The contractual agreements for these agencies typically have language explaining the high level of risk that may exist in intercountry adoptions. However, a later case warned that agencies may become liable for negligence in their post-placement representations or clarifications that may be requested after the child begins to live with the family but before the finalization of the placement. Also, the existing cases have only been brought against U.S. agencies; there have, as yet, been no filings against agencies, facilitators, or intermediaries in other countries.

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