"Wrongful Adoption" Warnings and Liabilities
The Donaldson Foundation Warns Adoptee's Legal Redress
Areas of Concern for the Future: "Wrongful Placement" Claims by Adult Adoptees
Some agencies have expressed concerns that current policies promoting transracial adoption and recent mandates related to the Americans with Disabilities Act may lead to claims by adopted individuals that they were improperly placed with unsuitable adoptive families.
With regard to transracial adoption policies, the concern is that adoptees may later claim that adoptive placements outside their communities of color have harmed them.
Federal law, as stated in the Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996, essentially prohibits the consideration of race, culture, or ethnicity in a foster or adoptive placement.
Will agencies, conforming to these mandates, later face liability if an African American child adopted by a white family, for example, asserts that he or she was harmed by being deprived of a family and community of his or her own race and culture? If an individual attributes mental health problems to his
will the agency potentially have liability under a theory of wrongful placement? Although speculative at this point, there are aspects of transracial adoption practice that may have implications related to "wrongful placement", issues that should be carefully considered as policies in this area are implemented.
In addition to the federal requirements related to transracial adoption practice, there are federal legislative requirements in the Americans With Disabilities Act of 1990 (ADA) which also raise concerns related to potential "wrongful placement"liability.
The ADA broadly protects individuals with disabilities from discrimination in the workplace as well as in relation to services provided by certain "public accommodations" such as private adoption agencies.
The ADA prohibits adoption agencies from categorically rejecting individuals as prospective adoptive parents by reason of an actual or perceived disability. Protected disabilities under the ADA broadly include physical diseases, handicapping conditions, and mental illnesses and disorders. Although agencies are permitted to conduct individualized assessments to determine whether, on the basis of safety, an individual with a disability should qualify as an adoptive parent, there are, nonetheless, risks associated with decisions to reject applicants based on disability. Agencies potentially face charges of discrimination and litigation based on alleged violations of the ADA when they reject applicants on the basis of disability. Potential liability under the ADA appears to exist even when agencies inquire about applicants' health and other history in an effort to comply with state laws that require prospective adoptive parents to be in reasonably good health as a prerequisite to adopting.
From the standpoint of potential liability for "wrongful placement," there is the possibility that an adoptee could later assert negligence on the part of an agency for placing her with an adoptive parent whose physical or mental disability should have alerted the agency to significant limitations in the individual's ability to parent. Will agencies, for example, later face liability because they place children with individuals with histories of mental health problems and who later abuse or neglect them? If an individual claims emotional injury from being placed with an adoptive parent whose known medical condition resulted in an early death, leaving the adopted child to suffer yet another loss, could an agency be held liable? These issues have not yet been addressed.
Courts that have recognized the tort of wrongful adoption and held agencies liable for fraudulent and negligent conduct have clearly outlined the type of misconduct for which agencies will be held liable.
There remain, however, questions about the nature and scope of wrongful adoption liability, particularly in the area of international adoption, where lawsuits have only recently begun to be filed, and in relation to such questions as the duty to obtain full information, the communication of unverified and interpretative information, the use of genetic testing as part of pre-adoption evaluations, and the duty to disclose updated information. In spite of the lack of clarity in a number of areas, attorneys can assist agencies to implement a range of practices that will enhance their ability to properly disclose health and other background information and limit their exposure to liability for wrongful adoption.