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Wrongful Adoption and Agency Liability

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The Cases
- Fraud
- Negligence
Elements of Wrongful Adoption
Policy Issues
- Policy Issues Related to International Adoption
Best Practice
- Disclosure Obligations
- Obtaining Background Information
- Disclosure of Information
- For Adoptive Parents
Bibliography

The phrase "wrongful adoption" is a legal term that refers to the failure on the part of an agency or a worker to disclose known information, or information that should be known, about a child to the prospective adoptive parents.

While the legal concept of wrongful adoption is a recent development, the social work practice it relates to is as old as adoption. Historically, complete background information was made fully available to families through the first half of the 20th century. Beginning in the 1950s, however, restrictions were placed on the amount and types of information transmitted to families. Many current State adoption laws that require the sealing of adoption records were passed during this period. Social workers wanted to protect children from the societal stigma of illegitimacy and believed that parents generally did not want to discuss adoption openly, and consequently did not in all cases disclose all information about the children placed for adoption.

The 1970s saw a shift back to an openness in the sharing of information, which has continued and flourished in the 1990s. This change was rooted in the philosophical, practice-based experience of social workers and their clients who had placed children or been placed as children. Many of these birthparents and adoptees had returned to the agencies that had handled their placements and told of the continuing grief that had resulted from the closed placements and the withholding of information. Social workers were told, and began to see in their practices, that the exchange of non-identifying information promoted security and satisfaction with the adoptive placement for adoptees, birthparents, and adoptive parents. While State laws remained unaltered into the 1990s, practice moved dramatically toward the open sharing of some information in the preceding decades.

Legal cases (some outlined below) have found adoption agencies liable for an array of damages if they are found to have failed to disclose "material health and other background" information to adoptive parents. Also, some States have enacted laws mandating adoption agencies to disclose medical, health, and other background information about the child or birth family and holding the agencies liable for failures to disclose pertinent information if they intentionally or negligently conceal or misrepresent pertinent information.

In several cases, monetary damages have been awarded to adoptive families for three reasons:

  • To remedy the past wrong that was committed
  • To provide money for past and future medical, physical, and emotional needs of the child and family that may result from the withholding of information
  • To deter future misconduct on the part of agencies.
Among the specific damages that have been awarded to families in wrongful adoption cases are:

  • Extraordinary medical expenses for the child - past, present, and future
  • Expenses for medical care - including transportation, lodging, and equipment
  • Tutoring and special education services
  • Lost parental wages
  • Emotional distress, pain, and/or suffering - of the parents, child, and siblings
  • Physical injury to parents or siblings
  • Punitive damages - if fraud or aggravating circumstances are proved, or if the court determines that additional damages are warranted.
To date, parents in successful wrongful adoption suits have not been awarded compensation for the ordinary costs of rearing a child. This issue continues to generate controversy. Some observers argue that parents should be reimbursed for all expenses associated with the adoption, because the family might not have chosen to adopt had they been given the undisclosed information. Others disagree, saying that by adopting, parents agree to incur the normal costs of raising a child.

In a handful of wrongful adoption cases, parents have asked to dissolve the finalization of the adoption, thereby severing their legal ties to the child they adopted and returning the child to the custody of the agency. This drastic step, however, is rarely pursued.

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

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