It’s difficult to think of a more selfless act than adopting a child, especially considering that according to recent foster care statistics there are over 415,000 children currently in the foster care system. Adoptive and foster parents rely on the information the agency involved gives to them about the adopted child to make an informed decision about adoption.
In the majority of cases, adopted children do not have any significant histories or impairments that would make them unsuitable for being placed into an adoptive family. But what happens when an adoption agency fails to investigate the medical, mental health or behavioral background of the child? Or what if an agency knows the child has a significant behavioral, social or medical history — such as incidents of violence, sexual abuse, or drug/alcohol dependency — but fails to disclose that information to the prospective adoptive parents?
There are countless cases where someone has been seriously harmed as a result of an adoption or foster care placement agency’s failure to disclose such information to adoptive parents. Many of the legal cases have gone unnoticed due to confidentiality agreements and protective orders, but various cases throughout the country involve some variation of the following fact pattern:
- An adoption placement agency (or foster care agency, social services agency, etc.) places a child into a home;
- The agency either: (a) fails to conduct a reasonable investigation of the child’s background, which would have revealed a significant medical, mental health or behavioral history (such as a violent criminal background, history of sexual abuse or other violence, or alcohol/drug dependency); or (b) knows of a significant history involving the child, but fails to disclose that history to the adoptive parents where the child is placed;
- The child harms a member of the family in such a way consistent with the child’s undisclosed medical or behavioral history.
For example, consider the following scenario based on several reported cases: An adoption agency places a teenage boy with a history of sexually assaulting other children into a home with several children under the ages of 7. The placement agency fails to disclose this history to the adoptive parents. The teenage boy sexually assaults each of the children on multiple occasions before it is eventually discovered by the adoptive parents.
Adoption Negligence (or Wrongful Adoption)
Adoption negligence, also referred to as wrongful adoption, refers to a lawsuit brought by adoptive parents who were either negligently or intentionally misinformed about the health or background of their adoptive child, and as a consequence suffered harms or losses associated with raising a disabled child. This cause of action is most commonly raised in the context of an adoption agency’s failure to disclose the behavioral and medical history of a child to the adoptive parents, and as a consequence a member of the family is physically, emotionally or financially harmed.
Illinois Law of Adoption Negligence
Pursuant to the Illinois Adoption Act, agencies are required to disclose certain information, “if known,” to prospective adoptive or foster parents, including “detailed medical and mental health histories of the child, the biological parents and their immediate relatives.” Illinois courts have gone future to require agencies to perform a reasonable investigation into discovering such medical and behavioral history of the child in order to ensure parents are able to make an informed decision about adoption.
There are various theories of adoption negligence liability for failing to disclose, such as:
- Common Law Fraud (or Intentional Misrepresentation) — Where agencies knowingly fail to disclose important medical, behavioral or criminal history to adoptive parents, they may be held liable for fraud.
- Common Law Negligence — Courts have extended basic principles of negligence to this area where agencies, through their negligence, fail to provide adoptive parents with relevant medical or behavioral information concerning the child.
- Negligent Misrepresentation — A subset of negligence, involving the agency’s unreasonable representations to the adoptive parents that the child does not have any significant medical or behavioral history.
Adoptive parents and their families should be protected from negligent, reckless or intentional misconduct by adoption professionals that places their physical, emotional and financial safety at risk.
To effectively prevail in an adoption negligence (or wrongful adoption) case often requires working with skilled trial lawyers familiar with this area of law, and who work with a team of experts, often including social workers, doctors and other health care professionals, life care planners and others to establish the clear liability of the agencies involved, as well as the full extent of harms and losses caused to the injured family members.
For a fee and confidential discussion with one of Passen & Powell’s top-rated attorneys, call us anytime at 312-527-4500.