McKinney v. StateMcKinney v. State
In a case with very compelling facts, we must decide if Washington recognizes a cause of action for the negligent failure of an adoption placement agency1 to disclose statutorily-mandated information about the child to prospective adoptive parents. We hold adoptive parents may state a cause of action against an adoption placement agency for the negligent failure to meet the disclosure requirements of
In the present case, the trial court properly instructed the jury on the duty of the Department of Social and Health Services (DSHS), the adoption placement agency, to disclose information to the McKinneys, on their status as prospective adoptive parents, and on proximate cause. Substantial evidence supported the jury‘s determination DSHS was negligent, but such negligence was not a proximate cause of damages to the McKinneys. We affirm the trial court‘s judgment.
1. Is a cause of action recognized in Washington for the negligent failure of an adoption placement agency to disclose to prospective adoptive parents statutorily-mandated information regarding the child?
2. When did the McKinneys become prospective adoptive parents, triggering the disclosure requirements of
3. Is the jury‘s verdict supported by substantial evidence?
FACTS
The McKinneys became acquainted with Gabriella (Abby) in 1985 when she was two and a half years old and in foster placement with a friend. For six months to one year, they were Abby‘s baby-sitters on weekends and when the foster mother was out of town. Through this contact with Abby, the McKinneys knew: Abby had behavior problems including approximately twenty to thirty temper tantrums a day; there were rumors that she had been sexually abused; she was not talking; she did not engage in play like other children her age, nor did she seem to want to jump, climb, or even walk to any length; she was in a special education program; she was receiving speech therapy and physical therapy; she was receiving counseling and treatment at Good Samaritan Mental Health Center (Vicky McKinney accompanied Abby and the foster mother to at least one of these mental health appointments in 1985); Abby had already been in several foster homes and was removed from the biological mother due to neglect; the biological mother “liked to party“; and Abby was developmentally delayed.
Despite Abby‘s special needs and troubled history, the McKinneys admitted they fell in love with Abby at first sight, and unilaterally decided to adopt Abby before they ever met a caseworker. On October 25, 1985, the McKinneys applied to Catholic Community Services to become foster parents. Although they had decided to adopt Abby, they indicated on the foster application they had not applied to adopt a child.
Abby was placed in the McKinneys’ home as a foster child on August 1, 1986. The McKinneys acknowledge this was a foster placement, for which they received regular monthly foster care payments and a special needs allowance from DSHS for Abby because of her developmental problems. In 1986, Vicky McKinney asked a state caseworker to have Abby‘s medical records forwarded to the family pediatrician, but the records were not sent.
From the time of Abby‘s foster placement in the McKinneys’ home in 1986, until the McKinneys applied to adopt her in 1989, they gained more knowledge of Abby‘s background and medical/psychological condition. In 1986, Vicky McKinney indicated to a caseworker she understood Abby‘s biological mother drank heavily while pregnant with Abby. Vicky McKinney also had a copy of a doctor‘s letter indicating Fetal Alcohol Syndrome (FAS) was a possibility in Abby‘s case, and stating Abby may have been born prematurely. In a conversation between Abby‘s developmental disabilities caseworker and Vicky McKinney, the caseworker expressed her concerns regarding Abby‘s developmental delays and the fact that “we did not have a clear knowledge of what Abby‘s needs would be or how long the behaviors would continue.” Report of Proceedings at 1779. Responding to the caseworker‘s concern about the McKinneys’ decision to adopt Abby in light of these uncertainties, Vicky McKinney “indicated that they were clear with that decision.” Report of Proceedings at 1779.
The parental rights of Abby‘s birth parents were terminated in November 1987, freeing Abby for adoption.
In 1988, caseworkers discussed with the McKinneys an array of Abby‘s problems including possible FAS, sexual abuse, and mental retardation. When the McKinneys filed their adoption application for Abby on August 5, 1988, they also applied for an adoption support subsidy, listing Abby‘s special needs as hyperactivity, learning disability, and alcohol syndrome. On March 21, 1989, the McKinneys’ application for an adoption support subsidy for Abby was accepted by DSHS. A preplacement evaluation or “home
On January 9, 1990, the McKinneys received the Child‘s Medical and Family Background Report from DSHS, which noted Abby‘s developmental delays and her biological mother‘s history of alcohol abuse. Vicky McKinney spoke with a nurse at the University of Washington‘s FAS Clinic on March 28, 1990, regarding Abby; the nurse sent her five articles regarding FAS and FAE (Fetal Alcohol Effect), which Vicky McKinney confirmed she read in April 1990. Through a referral from the UW FAS Clinic, the McKinneys took Abby to a FAS specialist for an evaluation. That doctor concluded Abby had possible FAE. Abby was diagnosed as having FAS in December 1993.
Upon completion of a favorable home study, the Pierce County Superior Court entered a formal decree of adoption on June 19, 1990, placing Abby with the McKinneys.
The McKinneys did not receive all the medical and social records on Abby‘s birth and upbringing until after the formal adoption. After the adoption, the McKinneys requested and received Madigan Army Medical Center birth records concerning Abby‘s premature birth. In April 1992, the McKinneys requested and received DSHS‘s records concerning Abby, which indicated there were questions as early as 1984 that Abby‘s problems might be attributable to her birth mother‘s alcohol abuse. Other theories for Abby‘s problems, such as Downs Syndrome, were also considered in the records. As early as 1984, DSHS records also contained police reports and medical records indicating Abby may have been sexually abused.
The McKinneys filed this action against DSHS in November 1993, alleging negligence, violation of
In conjunction with pretrial motions, the trial court decided the issue of when the McKinneys became prospective adoptive parents. The State argued such status attached only when the McKinneys formally petitioned to adopt and the home study on them was completed. The McKinneys contended the appropriate date was August 1, 1986, the date Abby was first placed in their home. The trial court ruled that when the McKinneys’ written application to adopt and request for adoption support assistance was approved by DSHS on March 21, 1989, they became prospective adopting parents, and later so instructed the jury. The jury returned a defense verdict after a month-long trial, finding DSHS negligent, but such negligence was not the proximate cause of damages to the McKinneys. Both parties appealed and we granted direct review.
ANALYSIS
A. Negligent Failure of an Adoption Agency to Disclose Information on a Child to Prospective Adoptive Parents
The McKinneys assert had they known the truth about Abby‘s developmental and other problems they would not have taken her into their home or adopted her. They claim DSHS‘s negligent failure to disclose medical and other background information about Abby affected their adoption decision.
The State argues the trial court‘s recognition of a wrongful adoption claim based on negligence is unprecedented and only causes of action for fraud and intentional misrepresentation in failing to disclose pertinent information about an adoptive child have been recognized in other jurisdictions. The State further contends public policy concerns weigh against creating a cause of action for wrongful adoption based on negligence because adoption agencies should not be required to guarantee the health of the children they place or have the burdensome duty to discover and disclose all health information regarding the child.
Under the current versions of
We believe the Legislature has established the duty owed by adoption placement agencies in
A duty predicated upon a statutory obligation has been recognized in analogous settings by our courts. In Lesley v. Department of Soc. and Health Servs., 83 Wash. App. 263, 273, 921 P.2d 1066 (1996), review denied, 131 Wash.2d 1026, 939 P.2d 216 (1997), and Yonker v. State Dep‘t of Soc. and Health Servs., 85 Wash.App. 71, 930 P.2d 958 (1997), the Court of Appeals upheld a cause
Similarly, in Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994), the Pennsylvania Supreme Court recognized a cause of action for negligent failure to disclose information based on statutory obligations comparable to those imposed by the Washington statutes. The court found Pennsylvania‘s disclosure statute, which requires an adoption agency to obtain medical history on adoptees and to “deliver such information to the adopting parents or their physician” created a duty to reveal all available nonidentifying information about a child. Gibbs, 647 A.2d at 892. The Gibbs Court found this duty to be consistent with the intent of the Pennsylvania legislature and recognition of a cause of action based on statute was also consistent with long-standing common law principles. Id.
Aside from the statutory imperative, there are strong public policy grounds for establishing a cause of action for prospective adoptive parents against adoption placement agencies that negligently fail to disclose pertinent information about the child. The Gibbs court found the unique relationship of trust and confidence between the agency and the prospective parents supports a disclosure duty:
Even were the statutory foundation for the assignment to adoption intermediaries of a duty to disclose less persuasive, we find that the unique relationship between the adoption agency and the prospective parents gives rise to such a responsibility...
The adoption agency—adopting parent connection is, or should be, one of trust and confidence, differing significantly from a business arrangement in which two parties to a transaction may maintain silence in order to negotiate the stronger position, and are under no obligation to divulge information which may weaken that position.... Rather, this relationship is a singular one in that the parties act not as adversaries, but in concert to achieve a result desired by both sides, the creation of a viable family unit.... We thus conclude that a duty to disclose is created by this unique association.
Id. at 892-93 (citations omitted). The special relationship between adoption placement agencies and adopting parents argues strongly for recognition of a cause of action in tort. Cf., Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 467, 656 P.2d 483 (1983) (tort of wrongful birth sounding in negligence recognized because the action conforms comfortably to the structure of tort principles and is a logical and necessary development).
In Mohr v. Commonwealth, 421 Mass. 147, 653 N.E.2d 1104, 1113 (1995), the Supreme Judicial Court of Massachusetts recognized claims for negligent, as well as intentional, failure to disclose information based on a statutory disclosure duty.7 The Court concluded public policy ultimately favors recognizing liability for an adoption agency‘s material misrepresentations of fact regarding the child‘s history prior to adoption. See Mohr, 653 N.E.2d at 1111-13. Recognizing representative cases in which courts had limited liability to claims involving intentional conduct,8 the Mohr court noted:
Other courts, however, have held that,... public policy also supports recognizing the tort of negligent misrepresentation in the adoption context. These courts have emphasized “the compelling need of adoptive parents for full disclosure of medical background information that may be known to the agency on both the child they may adopt and the child‘s genetic parents, not only to secure timely and appropriate medical care for the child, but also to make vital personal, health and family decisions.” This need ... outweighs any increased burden that is placed on adoption agencies when liability is imposed for negligent as well as intentional misrepresentation. In addition, these courts have maintained that allowing negligent misrepresentation claims against adoption agencies does not subject agencies to potentially limitless liability or make them guarantors of adopted children‘s health ...
... We agree.
Id. at 1111-12 (emphasis added, citations omitted).
In Mallette v. Children‘s Friend and Serv., 661 A.2d 67, 73 (R.I.1995), the Rhode Island Supreme Court recognized a claim for negligent misrepresentation despite the fact Rhode Island had no statutory duty to disclose, declaring:
the need for accurate disclosure becomes more acute when special-needs children are involved. Parents need to be financially and emotionally equipped to provide an atmosphere that is optimally conducive to that special child‘s growth and development. Although biological parents can assess the risks of having a child by investigating their own genetic backgrounds, adopting parents remain at the mercy of adoption agencies for information, ... We believe extending the tort of negligent representation to the adoption context will help alleviate some of the artificial uncertainty imposed on a situation inherent with uncertainty.
We are mindful of the concern a broad duty of disclosure could impose an excessive burden on adoption placement agencies who are exerting their best efforts to place children with loving adoptive parents. This concern is particularly acute for special needs children like Abby. But we believe the Legislature understood this concern in limiting the scope of disclosure and confining agency investigative efforts to reasonable efforts in both
We find that the creation of a duty in this instance will further the interests of parents by providing them with as much factual and valid information as possible about the child they are to adopt without placing an undue burden on adoption agencies, as they are required only to make reasonable efforts to disclose fully and accurately the medical history they have already obtained. Only where adoption intermediaries disclose information negligently will they be liable. Thus, the only burden on adoption intermediaries is the obligation to make a reasonable investigation of their records, and to make reasonable efforts to reveal fully and accurately all non-identifying information in their possession to the adopting parents. We do not believe that this responsibility constitutes an undue burden in light of the important interests served by its performance.
We hold the negligent failure of an adoption placement agency to disclose the information required by
B. Prospective Adoptive Parents
The duty to disclose under
In addressing pretrial motions, the trial court was confronted with several different options for the date upon which the McKinneys became prospective adoptive parents. On the suggestion of the McKinneys’ attorney, the trial court considered
(1) Department placements:
(a) Applications are accepted from families residing in the state of Washington based upon the anticipated children needing placement;
(b) Upon acceptance of an application, a home study shall be initiated ...
The McKinneys’ attorney argued the filing of the adoption application on August 5, 1988, changed the McKinneys’ from foster parents to prospective adoptive parents. The McKinneys assert on appeal because
The State below claimed the McKinneys did not become prospective adopting parents until the home study was completed in April 1990 because a home study was a mandatory condition to any adoption.
The trial court ruled DSHS‘s obligation to the McKinneys began when the adoption application was signed by DSHS on March 21, 1989, indicating DSHS‘s acceptance of the McKinneys’ application and approval of their request for an adoption subsidy for Abby. Instruction 16 stated: “The McKinneys became prospective adoptive parents on March 21, 1989. The adoption took place June 19, 1990.” The McKinneys claim the instruction is erroneous because it misconstrues the purpose of disclosure, fails to acknowledge DSHS recognized the McKinneys as potential or likely adoptive parents for Abby much earlier than March 21, 1989, and invaded the province of the jury by resolving an issue of fact. Br. of Appellant at 22-24.
The trial court correctly determined the disclosure requirements of
As to the substantive issue, in In re Dependency of G.C.B., 73 Wash.App. 708, 719, 870 P.2d 1037, review denied, 124 Wash.2d 1019, 881 P.2d 254 (1994), the Court of Appeals noted in dicta:
An adoption proceeding is initiated when a “prospective adoptive parent” files a petition for adoption accompanied by a preplacement report.
RCW 26.33.150(1) ,(5) . The statute does not define “prospective adoptive parent“, nor does it describe the qualifications necessary to become one. Although “[a]ny person who is legally competent and who is eighteen years of age or older may be an adoptive parent“,RCW 26.33.140(2) , it does not follow that every such person is a “prospective adoptive parent” with the right to commence adoption proceedings and obtain placement of a particular child. Rather, we surmise from both common sense and a long line of Supreme Court authority that it is ordinarily the prerogative of the Department or child-placing agency to designate prospective adoptive parents for a particular child.
(Emphasis added.) The Court of Appeals implored the Legislature to “define the statutory term `prospective adoptive parent‘, clearly setting forth the prerequisites to becoming one.” Id. at 722, 870 P.2d 1037. Nevertheless, the Legislature has not provided such a definition. For purposes of the requirements of
To fairly balance the interests of all persons involved in the adoption relationship—the child, the birth parents, and the prospective adoptive parents—we believe the status of prospective adoptive parents comes into existence only when a child is eligible for adoptive placement. The language in
Moreover, the McKinneys’ argument that prospective adoptive parent status attached before the termination of parental rights as to Abby is flawed in light of strong legislative policy on out of home placements. The Legislature has made a clear policy decision that while the best interests of the child are a paramount concern, where feasible, the family unit should remain intact. See
On the other hand, DSHS‘s bright-line test is at odds with the language of the statute. Rather than requiring disclosure to adoptive parents, the Legislature mandated disclosure to prospective adoptive parents, a status which may be achieved before completion of the home study and entry of the decree of adoption, if the placement agency has formally acknowledged the eligibility of particular parents to adopt a particular child. Plainly, prospective adoptive parent status may be achieved by more than one set of potential adoptive parents; DSHS‘s argument implies only the ultimately successful adoptive parents are entitled to disclosure. This is not consistent with the statutory language.
In summary, for purposes of
In this case, the McKinneys claim a fact question existed as to the date upon which their status as prospective adoptive parents attached. They assert DSHS files and DSHS staff acknowledged them as prospective adoptive parents earlier than 1989. While DSHS records indeed indicate the McKinneys had an interest in adopting Abby since before placement in 1986, they do not establish the McKinneys had attained the status of prospective adoptive parents. We do not believe the informal intentions of persons interested in adopting a child or words of encouragement from caseworkers who want to see children placed in loving homes are enough to establish the statutory status. The McKinneys were Abby‘s foster parents. They knew they were foster parents and had no guarantee they could adopt Abby. The rights of the birth parents as to Abby were not terminated until November 1987, the earliest date Abby was even eligible for adoption. The McKinneys filed their adoption petition in August 1988. DSHS gave its formal assent to their eligibility for Abby‘s adoption by approving their status and request for adoption subsidies on March 21, 1989. Under these circumstances, given our test for prospective adoptive status, the trial court did not err in ruling as a matter of law the McKinneys’ prospective adoptive parent status attached on March 21, 1989.13
C. The Jury‘s Verdict
The final issue is whether the jury‘s verdict was correct. The McKinneys assert they would not have adopted Abby had DSHS not negligently withheld information regarding her developmental and other problems. DSHS has not challenged the jury‘s finding of negligence, but argues the jury verdict on proximate cause was proper.
The issues regarding proximate cause are fact-responsive: what did the McKinneys know about Abby‘s problems, when did they know it, and what was the effect of such knowledge on their decision to adopt Abby? In light of our ruling on prospective adoptive parent status for the McKinneys as stated in Instruction 16, we review the jury‘s decision
Substantial evidence at trial supports the jury‘s verdict on proximate cause. The McKinneys indicated at trial they had frequent contact with Abby for six months to a year in 1985 baby-sitting for Abby‘s foster mother. During this time, the McKinneys gained first-hand knowledge of the extensive developmental and behavioral problems plaguing Abby, and became aware Abby was in therapy regarding these problems. During this time, the McKinneys also became aware of rumors Abby had been sexually abused. With this knowledge, the McKinneys decided to adopt Abby before talking with anyone at DSHS.
Between the time Abby was placed with them in August 1986 and March 21, 1989, the McKinneys became progressively aware of Abby‘s special needs associated with FAS/FAE and other developmental problems. The McKinneys received an additional rate of reimbursement as foster parents for Abby‘s special needs and later became eligible for an adoption subsidy because of Abby‘s special needs. The receipt of these additional public funds for Abby‘s special needs was a particularly significant demonstration that the McKinneys were cognizant of Abby‘s problems.
The evidence presented at trial indicates the McKinneys already possessed knowledge of most of Abby‘s problems, which disclosure by DSHS would only have confirmed. Thus, forewarned, the McKinneys decided to adopt Abby in 1985. Additional information gained while Abby lived with the McKinneys as a foster child did not deter the McKinneys from their goal of adopting this troubled child. Given what the McKinneys knew, when they knew it, and their decision to adopt Abby anyway, the jury reasonably concluded any subsequent failure by DSHS to disclose information played no role in the McKinneys’ decision to adopt Abby. The jury verdict on proximate cause was supported by substantial evidence.14
CONCLUSION15
In this very difficult case, we are sensitive to the many competing interests associated with Abby‘s adoption. The McKinneys, to their lasting credit, fell in love with a child affected by substantial developmental and behavioral problems and a very difficult life history. They, and parents like them, are entitled to the information described in
Adoption placement agencies, whether individuals, DSHS, or private agencies, must give prospective adoptive parents needed information about children so the prospective parents can make a wise decision so fundamentally important to them and their adoptive child. The burden of disclosure must not be such that adoptions will be “chilled” by the specter of litigation; placement agencies are not guarantors the adoptive children will have no physical or psychological special needs, or their familial histories are picture perfect. They must only make reasonable efforts to disclose the statutorily-prescribed medical/psychological and social information on adoptive children.
The trial court‘s recognition of a cause of action for negligent failure to disclose medical and social information required by
DURHAM, C.J., and SMITH, JOHNSON and SANDERS, JJ., concur.
The majority concludes that there is a duty to disclose medical and other information under
The majority properly recognizes that placement for foster purposes does not trigger the disclosure obligations under
The statutes do not say that disclosure must be made when the status of prospective adoptive parent arises. The statutes say that disclosure must be made “prior to placement.” Thus, while the disclosure must be made to a prospective adoptive parent, the point in time when disclosure must be made is not determined by when one becomes a prospective adoptive parent, but rather by when placement for adoption occurs. This is a crucial distinction, because the Legislature has mandated that placement for adoption cannot occur until a preplacement report has been filed with the court.
Rather than the majority‘s test which is directed at the wrong question, the court should hold the duty to disclose must be satisfied by the time the child is placed for adoption. This standard necessarily requires that certain conditions be met.
First, the statutes are absolutely clear that “a child shall not be placed with prospective adoptive parents until a preplacement report has been filed with the court.”
The preplacement report shall be a written document setting forth all relevant information relating to the fitness of the person requesting the report as an adoptive parent. The report shall be based on a study which shall include an investigation of the home environment, family life, health, facilities, and resources of the person requesting the report.... The report shall include a recommendation as to the fitness of the person requesting the report to be an adoptive parent.
Second, the child must be eligible for adoptive placement. State statutes generally contemplate two ways in which a child may
Thus, either through relinquishment proceedings or through termination of parental rights (or both, for example, where a birth mother relinquishes but the birth father does not, and instead his rights are terminated in accord with statutory standards), the child must be eligible for adoptive placement before placement can be made.
Finally, the child must actually be placed for adoption. Although the statutorily required disclosures must be made by the time placement for adoption occurs (“prior to placement“), it necessarily follows that no duty arises, and no breach of that duty can be found, if a placement for adoption never actually occurs. Nor can breach of the statutory duty be found if the required disclosure of information is made any time prior to placement for adoption.
The majority, as noted, correctly concludes that foster care placement does not give rise to a duty to disclose information under
When the emphasis is placed on adoptive placement in accord with the statutes, the difficulties the majority encounters in deciding when one becomes a “prospective adoptive parent” do not arise. By the time adoptive placement occurs, clearly, one has become a prospective adoptive parent.2
The majority concludes, however, that filing of a preplacement report is not a prerequisite to disclosure under
Second, the majority‘s reason for rejecting the requirement of a preplacement report does not withstand scrutiny. The majority says such a requirement implies that “only the ultimately successful adoptive parents are entitled to disclosure” and this is not consistent with the statutes. Majority at 470. However, placement for adoption does not mean that adoption will occur. Nothing prevents a person with whom a child has been placed for adoption from deciding after placement that he or she does not wish to carry out plans to adopt. The department or private agency involved may determine that adoption is not, after all, appropriate in the circumstances. See In re Dependency of G.C.B., 73 Wash.App. 708, 719-21, 870 P.2d 1037 (1994) (and cases cited therein). In addition,
Although the majority‘s test for determining when disclosure must be made under
I concur in the result reached by the majority.
DOLLIVER, GUY and ALEXANDER, JJ., concur.
Notes
(1) Every person, firm, society, association, corporation, or state agency receiving, securing a home for, or otherwise caring for a minor child shall transmit to the prospective adopting parent prior to placement and shall make available to all persons with whom a child has been placed by adoption a complete medical report containing all known and available information concerning the mental, physical, and sensory handicaps of the child.
(2) The report shall not reveal the identity of the birth parent of the child except as authorized under this chapter but shall include any known or available mental or physical health history of the birth parent that needs to be known by the adoptive parent to facilitate proper health care for the child or that will assist the adoptive parent in maximizing the developmental potential of the child....
(4) Entities and persons obligated to provide information under this section shall make reasonable efforts to locate records and information concerning the child‘s mental, physical, and sensory handicaps. The entities or persons providing the information have no duty, beyond providing the information, to explain or interpret the records or information regarding the child‘s present or future health.
(1) Every person, firm, society, association, corporation, or state agency receiving, securing a home for, or otherwise caring for a minor child shall transmit to the prospective adopting parent prior to placement and shall make available to all persons with whom a child has been placed by adoption, a family background and child and family social history report, which includes a chronological history of the circumstances surrounding the adoptive placement and any available psychiatric reports, psychological reports, court reports pertaining to dependency or custody, or school reports. Such reports or information shall not reveal the identity of the birth parents of the child but shall contain reasonably available nonidentifying information.
(2) Entities and persons obligated to provide information under this section shall make reasonable efforts to locate records and information concerning the child‘s family background and social history. The entities or persons providing the information have no duty, beyond providing the information, to explain or interpret the records or information regarding the child‘s mental or physical health.
The obligation in
In 1989,
The concurrence and the State believe the disclosure obligation of
The concurrence‘s approach is inconsistent with the language of the disclosure statutes.
Moreover, the policy of the statute is to give prospective adoptive parents appropriate information upon which to make the vital and sensitive decision of whether to adopt. This policy is defeated if the information is provided as late in the process as the concurrence envisions.