Court Cases on Adoption
123 P.3d 1017 (Alaska 2005)
The foster parent to three Native American siblings petitioned to adopt the children. Children experienced numerous failed placements with relatives and reunification with their birth parents failed. Their tribe and a relative opposed adoption based on the Indian Child Welfare Act’s preference for placing Native American children with Native American families unless there is a showing of good cause. The court affirmed the lower court’s decision that good cause existed to deviate from ICWA and the adoption was granted. Each of the children had special educational and behavioral needs and one had FASD. The tribe’s village could not adequately meet the children’s needs and services and health care were more available in adoptive mother’s town
571 S.E. 2d 142, 211 W.Va. 323 (2001)
The parental rights of the mother of Aaron M. and Anthony H. were terminated, and custody was awarded to his maternal grandmother. As part of that order, the state Department of Health and Human Services was ordered to provide medical care, treatment and services for the physical, emotional and psychological needs of the children. One of the diagnoses included fetal alcohol syndrome. The particular dispute in this case concerned a request that the Department be ordered to pay for treatment for another disorder.
629 F. 2d 1295 (Ct. App. 4th Cir. 1993)
Christopher April was born in 1984, and adopted by the plaintiffs in 1985. In 1991 the parents sued the adoption agency for "wrongful adoption." The trial court concluded that Louisiana law recognized a claim for wrongful adoption; the appellate court did not reach that issue.
Instead, the court of appeal concluded that the parents had waited too long to sue. The court held that, at the least, the parents had reasonable notice that they might have a cause of action when their pediatric neurologist told them that the child had FAS. The court's opinion suggested the parents were on notice years earlier that the child had serious neurological problems, and that it might not matter that they only learned later that FAS was the cause. (629 So. 2d at 1298). Under Louisiana law the parents were required to file suit within one year of the date when they knew that they had a claim, which they had not done.
The earliest signs of possible FAS were that the child had a small-head (microcephalic), and had a seizure when he was 8 months old. (629 So. 2d at 1296-97).
When the child was two and in day care, the school noted that he was "extremely hyper" and referred his parents to the local board of education. Based on that evaluation, and a finding that his speech development was slow, the school system placed the child in special education at the age of three. (629 So. 2d at 1297). The mother first began to suspect FAS after she read The Broken Cord, and saw the movie of the same name.
Another physician, Dr. Diane Africk, also diagnosed the child as having FAS. "Dr. Africk did not undertake any treatment because none is available." (629 So. 2d at 1297.)
88 F. 3d 902 (11th Cir. 1996)
The plaintiffs in this case had adopted two children through an adoption agency operated by the church. The agency allegedly assured the Cesniks that both babies were entirely healthy. Both children were ultimately diagnosed with a variety of serious medical problems, including fetal alcohol syndrome. The parents sued the agency to recover the additional expenses that would be involved in caring for the children's medical problems.
The court concluded that on the facts of the case the adoptive parents could sue the agency on several different theories: breach of contract, wire or mail fraud, and conspiracy.
The agency argued that the parents could not sue for those expenses. It contended that, once the parents discovered the children were not healthy, they should have simply returned the children to the agency (like returning a defective purchase). The court rejected that argument. (88 F. 3d at 909).
The parents in this case were receiving adoption assistance subsidies from the state of Georgia because of the medical problems of the children. (88 F. 3d at 904 and n. 5).
552 N.E. 2d 884, 50 Ohio St. 3d 88 (1990)
Charles B., age 8, suffered from a number of serious problems: leukemia (then in remission), low I.Q., a speech disorder, deficits in fine and gross motor skills, and "possible brain damage (fetal alcohol syndrome.)" (552 N.E. 2d at 884).
The court noted that these problems "make Charles less adoptable than other children his age." (552 N.E. 2d at 885).
There was expert testimony that Charles had "special needs" and "requires an adoptive parent with stability and flexibility, and the willingness to seek needed services." (552 N.E. 2d at 889).
The primary controversy in this case was whether Ohio law permitted the adoption of a child by a homosexual adult. The court held that it did.
4 Neb. App. 503, 546 N.W. 2d 77 (1996)
The adoptive parents adopted Crystal when she was 5. The state Department of Social Services recognized that she probably had FAS and had been damaged by her previous placements, perhaps by earlier sexual abuse. The state agreed to include Crystal in a subsidized adoption program, which included medical coverage specifically including mental health costs due to "prenatal alcohol use." 546 N.W. 2d at 79.
When Crystal was 13, the county brought her into juvenile court, and had her placed in the custody of the Department and placed in a juvenile institution. The state then sued the adoptive parents to force them to pay $425 a month for Crystal's support while she was in the facility.
The Court held that the Department's agreement to pay for "medical/mental health treatment" included the cost of the group home. 546 N.W. 2d at 84.
977 F. Supp. 56 (D.D.C. 1997)
The plaintiffs in this case had adopted a three year old Russian child, who later had a number of serious medical problems, including apparent FAS/FAE. They sued the adoption agency which had assisted the adoption and allegedly had failed to obtain or provide to the parents information about those problems.
(1) The parents alleged that the agency was guilt of intentional fraud. The court concluded that there was no evidence that the agency had withheld any adverse medical information from the parents.
(2) The parents asserted that the agency was guilty of intentional infliction of emotional distress. The court concluded there was no evidence that the agency intended to harm the parents, and that the agency's actions were not "extreme or outrageous."
(3) The parents asserted that the agency was guilty of "negligent misrepresentation", because it assertedly failed to make a reasonable effort to investigate the child's medical conditions. The court concluded that there was at least in most states "a common law duty imposed upon adoption agencies to investigate the background of prospective adoptees with reasonable care and to fully inform their client adoptive parents of the results." (977 F. Supp. at 60). In this case, however, the contract between the parents and the agency contained language in which the parents had waived any right to sue over such undiscovered medical problems.
912 F. 2d 468 (9th Cir. 1990)
A.S. was diagnosed at birth as suffering from FAS. His mother had an alcohol problem, and abandoned the child in the hospital.
A.S.'s aunt and her husband assumed responsibility for A.S., in a manner consistent with the customs of the Athabascan natives. The state of Alaska subsequently attempted to take A.S. away from the Graybeals. The court held the Graybeal's rights under the Indian Child Welfare Act, 25 U.S.C. $ 1912(a), had been violated by the state. The court's decision did not rest on the fact that the child had FAS.
52 Pa. D. & C. 4th 142
This case began as a wrongful adoption action by the parents of J.A., Jr.. The child was adopted in 1981-82. Extensive discovery took place over a period of several years.
Finally, in 2000 an amended complaint was filed, seeking to add J.A., Jr. himself as a plaintiff. He alleged that "the defendant's intentional misrepresentation concerning his medical history caused him to be placed with a couple who neither desired nor were capable of caring for a child with special needs resulting from fetal alcohol syndrome." 52 Pa. D. & C. 4th at 145.
The court held that an adopted child could bring such a lawsuit under Pennsylvania law.
The court also held that the limitations period did not begin to run until J.A., Jr. was actually diagnosed with FAS. 52 Pa. D. & C. 4th at 148. Pennsylvania, like at least most other states, has a statute which suspends the statute of limitations until a potential plaintiff is 18. Thus the limitations period in this case did not begin to run until November 1999, when J.A., Jr. turned 18.
This case is particularly significant because, although the parents of adopted children with FAS often face statute of limitations problems, the children themselves might not.
842 So. 2d 1149 (La. App. 4 2003)
The Lamberts sued the Associated Catholic Charities, alleging that it had misrepresented or failed to disclose key facts in connection with the adoption of their son Jeffrey. Jeffrey was adopted in 1983.
There were signs as early as 1985 that he was not "normal"; from that time on he had behavioral problems and was prescribed a number of special medications. In March 1990 a physician told Mrs. Lambert that Jeffrey had likely suffered a prenatal injury. At some point after October 1990 another physician advised the parents that Jeffrey had FAS. The Lamberts sued in July, 1991.
The defendant sought to dismiss the case on the ground that the statute of limitations had run. The critical question was whether the one year limitations period began to run in October 1990, when the FAS diagnosis occurred, or prior to July 1990. The court held that the period began to run before July 1990. "[K]nowledge of permanent impairment, without a formal diagnosis of fetal alcohol syndrome, is enough to place an adoptive parent on notice and thus trigger the running of [the statute of limitations." (**5). It is unclear whether the critical date was 1985 or March 1990. Decisions in other states hold that the limitations period only begins to run when the plaintiff learn of the existence of FAS.
598 N.W. 2d 554 (S.D. 1999)
Eli was adopted by Ms. Laws (and her then husband) in 1998. The DSS determined that Eli was a special needs child, and DSS agreed with the parents to pay a monthly subsidy of $157. In 1990 the parents learned that Eli's problems were worse than had been known earlier, and negotiated an increase in the subsidy to $187.55, and later to $370.45.
The initial determination that Eli was a special needs child was based on several factors, including "prenatal exposure to alcohol." N. 2. He was later "diagnosed with fetal alcohol exposure." N. 6.
After the level of the monthly subsidy had been raised, Ms. Law sued to obtain retroactive reimbursement at the new, higher rate. The court held that state law did not authorize such retroactive payments. (**9).
950 P. 2d 461, 134 Wash. 2d 388 (1998)
The court holds that under Washington law an adoption agency can be sued for negligent failure to disclose information to adoptive parents. 950 P. 2d at 465-70. The decision discusses opinions in a number of other states on this issue.
In this case the plaintiff parents lost because the jury found that they would have adopted the child in question even if they had been fully informed about her condition. 950 P. 2d at 471
2003 WL 220958 (Wash. App. Div. 1)
The Millers sued DSHS for wrongful adoption, alleging the agency breached its statutory obligation to disclose the health and social history of the child they adopted. The jury found that DSHS was negligent in failing to disclose information required by law, but concluded that the Millers would have adopted the child even if the disclosures had been made. 2003 WL 220958 at *1.
The trial court excluded expert testimony that the child had FAE. The expert was a Dr. Robert Galack, who had treated the child at the Fairfax Psychiatric Hospital. Galack knew that the mother drank before and after the pregnancy (by then 13 years earlier), but had no specific evidence that she drank during the 9 months of the pregnancy. Galack thought that that was sufficient to infer that she drank during the pregnancy.
The appellate court held that any inference that the mother drank during pregnancy was pure speculation, and that the diagnosis of Dr. Galack was therefore inadmissible.
2003 WL 220958 at *8. This reasoning seems in conflict with the analysis in In the Matter of Natasha Milland, 146 Misc. 2d 1, 7-8 (Family Ct. N.Y. County 1989).
This decision highlights the need to inquire quite specifically about alcohol use during the pregnancy in question.
96 Wash. App. 604, 980 P. 2d 302 (1999)
Mr. and Mrs. Price sued the state of Washington alleging wrongful adoption.
When the child was only a year old state officials diagnosed him as having neurological disorders. This was not disclosed to the parents, and after the adoption the child's pediatrician for several years detected no problems. At the age of 5 the child was diagnosed as hyperactive. At 8 or 9, a psychologist diagnosed the child as having "conduct disorder." As he grew older, his conduct become more destructive and uncontrollable. He was placed on numerous medications, without success. Finally, at the age of 14, the child was diagnosed by specialists at the Oregon Health Sciences University as having FAE.
The main issue on appeal was whether the parents had waited too long to sue. Although the Prices by 1991 clearly knew that the child had neurological problems, and suspected FAS/FAE, the court concluded that it was not until 1994 that the parents had learned enough that they were on notice of their claim against the state.
Among other things, the state officials had been told by the child's mother that during the pregnancy the mother had been drunk, although the sister had not actually seen the mother in the act of drinking. 980 P. 2d at 307. The court concluded the sister's observations were sufficient to put the state on notice. 980 P. 2d at 311.
2003 WL 231302 (Cal. App. 3 Dist.)
In this proceeding to terminate the parental rights of the father of several children, the court noted that most of the children had symptoms of FAS, "including broad foreheads, eyes set far apart, developmental delays, and the children were small for their ages." 2003 WL 231302 at *1.
A social worker involved in the case concluded that the FAS symptoms would might make it more difficult to locate an adoptive home. 2003 WL at *6. However, subsequently two of the children were placed in a prospective adoptive home.
741 A. 2d 1031 (D.C.App. 1999)
Plaintiff adoptive parent sued the adoption agency which had helped her to adopt a Russian baby girl. Twenty months after the lawsuit began, the plaintiff sought to amend her complaint to allege that the child had FAS/FAE. The trial court denied the motion, and the appellate court affirmed.
The denial of the motion was based among other things on three considerations: (1) the 20 month delay in seeking to amend the complaint, (2) the fact that the prospective adoptive mother had been warned at the time of the need to investigate possible FAS, and (3) "[t]here is no explanation why the possibility of FAS/FAE was never previously discovered during the nearly five years of close medical supervision of the child after her arrival in this country." 741 A. 2d at 1038.
This third argument reflects a certain unawareness of the extent to which physicians do not recognize, often for years, that a child's symptoms are the result of FAS/FAE.
541 A. 2d 625 (D.C.Ct.App. 1998)
Appellate court affirms the termination of father's parental rights. The court holds that the father would be unable to meet the special needs of the child caused by FAS and "fetal hydantoin syndrome." 541 A. 2d at 626-27.
The opinion notes that the child's foster parents appear better able to meet the child's needs.
Expert testimony asserted that the child's disabilities will make it harder to find adoptive parents. 541 A. 2d at 626.
17 F. Supp. 2d 577 (S.D. W. Va. 1998)
The adoptive parents of Jordan Wolford sued the adoption agency, alleging that Jordan had FAS and that the agency repeatedly lied to or misled them about Jordan's condition.
Specifically, the Wolford's alleged that employees of the adoption agency (1) falsely told them Jordan's mother had not consumed alcohol during her pregnancy, (2) falsely told them Jordan had been at the Shawnee Hills Intervention Program for reasons other than FAS, and (3) falsely assured them that Jordan's unusual facial features were merely a "familial look."
The district judge concluded that West Virginia law, like law in other states, would permit a lawsuit for "wrongful adoption." 17 F. Supp. 2d at 580-84. The court also concluded that the lawsuit was not necessarily barred by the statute of limitations, because there was a dispute regarding when the parents should have discovered that Jordan had FAS.