Wrongful Adoption: Fraud by Adoption Agencies


This past year marked the first known substantial recovery in California against a county adoption agency for its failure to disclose to adopting parents their adopted child's medical and psychological history. Forter v. San Mateo County is the first known successful adoption fraud case in the United States, but it is not unique. There are many equally tragic cases that await the discovery of mental health professionals and the efforts of trial lawyers to help these families obtain the funding necessary for lifetime psychiatric care.

The Adoption Agency's Duty to Disclose

The essence of an adoption fraud case is contained in Michael J. v. L.A. City Department of Adoptions (1988) 201 C. A. 3d 859, 876, which in recognizing an action for misrepresentation and fraudulent concealment of an adopted child's pre-adoption history, held that in an adoption "there must be a good faith full disclosure of material facts concerning existing or past conditions of the child's health." [Emphasis added.]

Full disclosure is important because adopting parents are opening their homes, their financial resources and their hearts to a child and as a matter of basic fairness are entitled to full disclosure. More importantly, full disclosure by the adoption agency ensures that a child needing prompt intervention and treatment will receive it and that untreated conditions which could be aggravated can and will be resolved.

Adoptions occurring between January 1, 1979 and January 1, 1981 are governed by California Civil Code Section 224s, amended Statutes 1978, Chapter 429, page 1339, which provides in part:

  • No agency shall place a child for adoption unless the agency has submitted a written medical report on the child's medical background, if available, and, so far as ascertainable, the medical background of the child's natural parents, conforming to requirements which shall be specified by the State Department of Social Services, to the prospective adopting parents and such prospective adopting parents have acknowledged in writing the receipt of such a report.

Civil Code Section 224s was amended effective January 1, 1981, Statutes 1980, Chapter 1229, page 4153, as follows:

  • No agency shall place a child for adoption unless a written report on the child's background, if available, and, so far as ascertainable, the medical background of the child's birth parents, has been submitted to the prospective adopting parents and the prospective adopting parents have acknowledged in writing the receipt of such report. The written report on the child's background shall contain all diagnostic information which is known, including current medical reports on the child, psychological evaluation, and scholastic information, as well as all known information regarding the child's developmental history and family life.

Both statutory duties are for the benefit of prospective adoptive parents and children and focus on the time of placement, not adoption. Placement occurs once the child is deemed by the courts to be fully relinquished by the natural parents and can be lawfully placed by the local agency.

While vigorous advocacy for the victims of adoption fraud can provide valuable remedies, these cases are extremely challenging from both a legal and factual perspective. Here are some of the pitfalls to be avoided.

Timely File a Claim

As soon as the child's parent suspects fraud by a public adoption agency, a claim must be filed within six months to preserve the parents' claims for damages for lifetime support and within one year to preserve the child's cause of action.

The time for filing a claim against the public agency begins to run as soon as a reasonable person should have been on notice of governmental misconduct. This defense is not summarily avoided because the issue is factual and each new fact uncovered concerning the child's history becomes a further piece of defense ammunition to be advanced against the plaintiff in light of all the surrounding facts.

The pitfall to be avoided is inadvertently proving the defense in efforts to establish the parents' and child's claim for damages for emotional harm. While it may be true that the parents and child have suffered over the years as a result of the agency's misconduct, proving the parents' damage case by emphasizing the bizarre conduct of the child and the length of time it continued also helps to establish the defense that "anybody would have suspected" pre-natal injury, pre-adoption abuse, and the like. In short, because hindsight is perfect there is a natural tendency to assume that the adopting parents should have concluded that they have been defrauded long before they learned the truth. So keep in mind that while proving damages these same facts will be argued by the defense in support of its statute of limitations defense.

In Forter the County repeatedly raised its limitations defense throughout discovery hoping to be able to develop enough facts to prove at trial that the parents should have suspected something was awry when their son's conduct began to become unacceptable, which was long before they filed their claim. It is reasonable to expect that this will occur in every case. Since hindsight is perfect, as the child's history of acting out comes forward it is important to keep it in perspective and within the context of the challenges of helping an adopted child adjust, often a lifetime process. Parents of adopted children must always struggle with making adjustments, and childhood conduct by itself without the benefit of knowing the child's history, medical background, and parental health care history does not lead to any meaningful action by parents. In addition, even with early referral to a child psychologist, without an accurate history the professional efforts of the therapist are dramatically less effective. Nonetheless, once the concealed history is revealed the etiology becomes so clear and compelling that it is easy for a lay person to mistakenly conclude that Mom and Dad should have suspected pre-adoption abuse, pre-natal alcohol or drug abuse by the natural mother, or the birth parents history of mental illness, and thereby provide the adoption agency with a good defense. An early claim disposes of this hazard.

As soon as a parent suspects fraud by the placing agency, a claim should be filed immediately. As a practical matter, the real basis of the action will not be provable until counsel examines in deal the voluminous records created in every public adoption. These documents are only available with a court order once an action is filed, so do not delay in filing a claim at the very earliest moment because it is only after suit that plaintiffs' counsel will be able to verify the facts initially reported by the adopting parents.

Plan for Substantial Case Costs

Preparing an adoption fraud case, like any case involving damages in excess of a million dollars, is expensive because of the need for expert witness testimony. Knowing what resources you will need will help you prepare and assure a complete investigation before unnecessarily committing funds to a case where a recovery is problematic.

Forter v. County of San Mateo required the testimony of the original treating psychologist who first saw the plaintiff when he was age three, the current child psychiatrist to testify concerning his current condition, prognosis, and the impact of the concealment of his psychiatric history and delayed treatment, a professor of social work on the failure to meet the standard of care in the original placement of the child, the treating pediatrician who had not been provided with the child's psychiatric records, a pediatric neurologist concerning the importance of a complete history in diagnosing childhood disorders, an adult psychiatrist concerning the plaintiff's prognosis in the absence of immediate special care, a psychologist/educational specialist who prepared a treatment lifeplan and presented the cost of services for the balance of this teenager's life expectancy, and an economist. There were several thousand pages of records to read from psychologists, several mental hospitals, Child Protective Services, AFDC files, adoption files and criminal records on the natural mother and total discovery came to twenty lengthy depositions. Pre-trial case costs advanced in Forter, exclusive of attorney's time, totaled $47,000. But for accepting the responsibility to pay these expenses and the anticipation that contingency fee would be approved by the court, this child's future psychiatric needs would remain unpaid.

Contest the $250 Limit on Recoveries for Post-1983 Placements

Placements after January 1, 1984 are subject to a peculiar limitation on recovery of $250 under The Adoption Information Act of 1983, codified in Civil Code Section 204t(14). Placements that occur before December 31, 1983 are not subject to this limitation, although the adoption agency will argue the contrary. In Forter this defense was raised by summary judgment and again at the time of trial.

Since the damage caused by failing to disclose a child's history can have a devastating impact in appropriate cases occurring after 1984 this statute must be challenged.

Many conduct disorders do not blossom until early puberty and are not fully appreciated until teenage years. As a practical matter, parents who report an incorrigible 13 or 14 year old, born in 1979 or 1980 most probably were placed before 1984 and can bring suit unimpeded by the necessity to challenge Section 204t(14).

If placement occurred after January 1, 1984, before challenging the legitimacy of the limitations on damages, carefully scrutinize the underlying facts to determine if this is the optimum case before delving into the legislative history behind Section t(14). There is no current case law on this statute.

The legislative history behind the statutory scheme requiring full disclosure was intended to also allow for an adopted child to be able to find out about his/her natural parents. In order to avoid potential damages as a result of this disclosure process the Legislature limited damages under the new statute to $250. Obviously, there was no intention to limit the lifetime damages of a child who has been irreparably injured by the willful misconduct of a social workers or other actions of employees of a Department of Social Services that have caused a child's life to be permanently warped.

Defendants will argue that The Adoption Information Act of 1983, specifically Section 14 of chapter 1162 of the Statutes of 1983, limits their liability exposure to $250.00 in all cases, even adoptions occurring before its effective date, January 1, 1984.

For the argument to prevail, with regard to children placed prior to December 31, 1983, a court would have to retroactively apply The Adoption Information Act. Courts routinely do not take such action.

Retroactive laws are generally disfavored because the parties affected have no notice of the new law affecting past conduct... (citation omitted). Consequently, new enacted statutes are presumed to apply prospectively only unless a clear intent to the contrary is expressed by the Legislature. Russell v. Superior Court (1986) 185 CA3d 810, 814.

There is absolutely no indication of any intent, let alone a clear intent, by the Legislature to apply The Adoption Information Act of 1983 retroactively. In fact, the only specific references to when The Adoption Information Act of 1983 would apply, other than the presumed normal prospective application, is the delayed prospective application referenced in Section 10 which states: "Sections 2, 4, 5, 6, and 7 of this act shall be operative January 1, 1986."

Other cases have refused to apply new damage provisions retroactively in the absence of clear legislative intent, on the ground that the new statutes reduced the amount of available damages and thus worked a "modification of liability," changing the legal effect of past transactions, rights and obligations. Russell, supra, at 816.

Even if there were a clear legislative intent to apply the 1983 statute retroactively, which there is not,such retroactive application would not effect a plaintiff's independent common law tort causes of action for fraud, intentional misrepresentation and concealment, negligent misrepresentation and concealment, intentional infliction of emotional distress, and negligent infliction of emotional distress. These common law tort causes of action exist independently from any statutory violation of Civil Code Section 224s.

Lastly, and conclusively, in Michael J., footnote 9, the Court stated:

The limitation of liability . . . "with regard to the programs authorized by this act" to two hundred and fifty ($250.00) for each such act or omission (citation omitted) would not apply to misrepresentations in the adoptive process outside of these particular programs. [Emphasis added.]

These "particular programs" enacted in 1983 did not exist beforehand and making liability for any act or omission with regard to programs authorized by this act an impossibility prior to December 31, 1983.

A plaintiff's delayed discovery of the adoption agency's fraud, which tolled the commencement of the statute of limitations, has no bearing on a defendant's attempt to accomplish a logical impossibility. While a plaintiff's causes of action will have accrued following delayed discovery prior to the filing of the claim and complaint, the law which effectively applies to a defendant are those which were in effect at the time of defendant's misrepresentations and concealment.

The Legislature's intent in passing The Adoption Information Act of 1983 was to facilitate efforts by adopted children to find their natural parents. In order to promote that goal and anticipating complaints by both children and natural parents of poor record keeping or wrongful disclosure, the Legislature adopted a $250 limit on damage claims against adoption agencies. The unfortunate outcome is that the Act now can be used by both negligent and willful wrongdoers to seek to shield themselves from responsibility for failure to disclose a child's medical history and the devastating damage caused by such concealment. This resulting injustice must be corrected by our Courts or Legislature.

Inquiries at the Initial Client Meeting

First determine if the the initial placement or the adoption occurred before January 1, 1984, for the reasons explained above. Once that hurdle is crossed, plan to devote several hours to working with your client to review all records and to begin writing a cogent history of every contact between the adoption agency and the family before and after placement. Your goal is to begin piecing together the history so that a detailed chronology will be readily available for reporting to your experts, for motions, settlement conference statement, and trial brief. In large part this history will not be finished until after the agency's adoption records have been produced.

At the initial meeting find out what type of child the adopting parents initially requested from the adoption agency when they filed their application. What were they were told about the child's and his/her natural parents' medical and social history at the time of placement or adoption as required by Civil Code Section 224s?

Is the child's condition today consistent with undisclosed prenatal abuse, fetal alcohol syndrome, pre-adoption physical, emotional abuse or neglect, or inherited mental illness? Has there been a failure to bond? Is the child abusive, rebellious, out-of- control, sexually active, or violent?

Has the adoption agency admitted at any time that it failed to fully disclose or at any time after the adoption made any additional disclosure? Has the client demanded from the agency all records which may indicate the cause of the child's current condition? If so, when? How long has the client's statute of limitations time clock been ticking?

Has the failure to disclose aggravated the child's condition or delayed securing appropriate treatment?

Content of the Claim and the Complaint

Under current law, a claim is treated as a pleading and must set forth, each party, each legal theory upon which a recovery will be sought and each item of damage.

It is important to include as claimants both the child, the adopting parents, and any siblings who have also suffered as a result of the disruption to the family home caused by the adopted child's psychiatric condition.

A claim must include each theory of liability and the supporting facts. In short, say more rather than less in explaining the basis of liability and the damages claimed. Since the essence of the action is delayed discovery, be especially careful to plead the date your client first suspected they had a cause of action against the adoption agency.

The Government Code Section 818.8 and 822.2 grants public entities immunity from liability for negligent misrepresentation. The immunities apply only to interferences with financial or commercial interests, including issuances of permits or licenses. Johnson v. State (1968) 69 Cal.2d 782, 800. These immunities do not shield defendants from liability for misrepresentation or deceit in adoptions. Michael J., supra, at 872. So while the claim must include as grounds for liability willful misrepresentation and concealment, in order to secure the resources and participation of the agency's insurance carriers in any eventual settlement, the claim and the complaint to follow must plead the defendants' negligent conduct, negligent infliction of emotion harm and negligence per se for violating statutory duties.

Claimed economic damages should include: past and future mental health care for life, including residential care; supervising advocate for life; life time home care and supervision; and lifetime lost wages for the child.

Do not forget to include non-economic, general damages for every claimant.

Although public entities as a matter of law are not subject to punitive damages for oppression and despicable misconduct, public employees can be held for punitive damages. So while punitive damages need not be listed in the claim, be sure to include a punitive damage claim against the individual tortfeasors in the final complaint.

Relinquishment is Not the Exclusive Remedy

The defendants will claim that the parents exclusive remedy is to relinquish their child under Civil Code Section 228.10 which provides that a petition to relinquish " shall be filed within five years after the entering of the decree or order of adoption." In most cases, the five year statute will have run years ago and the agency will claim it is insulated from suit.

This argument is flatly contradicted by the express language of Section 228.10 itself. There is no mention nor hint in Section 228.10, nor in any case, that it was intended to be an exclusive remedy.

The plain wording of the statute is that relinquishment is one option. The word used is "may:" "a petition setting forth those facts may be filed by the adoptive parents" and "If those facts are proved to the satisfaction of the court, it may make an order setting aside the decree or order of adoption." There is no mandatory language used in Section 228.10, and be sure to explain to the court when the defendant's motion is heard that the word is "may" not "must."

The fact is that Section 228.10 (formerly Section 227(b)) dates back approximately fifty years. Yet claims for monetary damages have been approved for concealment and misrepresentation in the area of social services. In reversing Summary Judgment, the Michael J. Court specifically held at 875:

  • Under these circumstances, and recognizing deliberate concealment and misrepresentation would be actionable, we hold that Summary Judgment is improper. (emphasis added)

Thus, case law approves of claims for damages and this statute offers no support for a wishful exclusive remedy defense. If the adoption statutes are to be liberally construed to promote justice and the welfare of the children, the statutes cannot be tortuously construed to insulate wrongdoers who conceal and misrepresent all to the harm of the child and their adopting parents.

Defendants will also claim in support of an exclusive remedy claim that money damages awards will cause more children to be deemed "unadoptable" because they might later develop mental illness.

The effect of exposure to money damages awards is to force full disclosure of information to the adopting parents in compliance with the law, and discourage the reprehensible concealment and misrepresentation seen in the instant case. After all, "just as couples must weigh the risks of becoming natural parents, taking into consideration a host of factors, so too should adoptive parents be allowed to make their decision in an intelligent manner." Michael J., supra, footnote 10. Adoptive parents should not be left to make the life-long decision of adoption with anything less than all the available information on the child.

If the exclusive remedy argument were the law, adoption agencies could routinely withhold vital information from adoptive parents with impunity. Civil Code Section 224s would be rendered meaningless. Defendants could withhold information to facilitate the adoptive parents' agreement to adopt, and if the situation did not work out or the concealed information became known, the adoptive parents could only petition to vacate the order of adoption, but only if the adoptive parents petitioned within five years. Beyond five years the adoptive parents and the child would have no remedy for what will inevitably become a life-long tragedy for both. That is the true social cost of the concealment and misrepresentation that adoption agencies seek to protect from liability with their absurd exclusive remedy argument.


Adoption fraud cases couple claims for psychiatric injuries to a child, with the claims of parents who have been emotionally and financially brutalized by an adoption that was expected to bring happiness to their home and family. Losing the expectation of a happy child and a wholesome home life and having it replaced with wholesale grief is an especially tragic injury to be inflicted on parents who opened their homes, families, financial resources, and their hearts to a needy child. The lifetime damage inflicted on children, leaving them only with the prospect of being anti-social and unemployable due to emotional injuries and damaged personalities, obviously leaves them as prime candidates for criminal activity, prosecution and imprisonment.

The strength of the tort law is that it provides the jury a public forum to express the community's standard of accountability. In the wrongful placement of children for adoption, there are no emotional or psychological impediments to the jury's unleashing a roar of disapproval, once the legal hurdles have been overcome. Obtaining a recovery for a wrongfully adoption placement is requires informed and extremely vigorous advocacy.

Current legal impediments to assure these victims full and complete psychiatric care should be removed. Our least protected citizens, orphaned children, deserve the best possible care by county adoption agencies and when that does not occur our Courts and Legislature should provide full and complete remedies to hold perpetrators of adoption fraud fully accountable.

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