In Rhode Island, Negligent Misrepresentation Applies in the Adoption Context

In 1995, the Rhode Island Supreme Court recognized for the first time the tort of negligent misrepresentation in the context of Rhode Island adoption law. Two parents alleged that their adoption agency misrepresented and omitted material information concerning the adopted child’s medical and family history. In an important decision, the state supreme court ruled that once it undertook to divulge the child’s health information, the agency assumed a duty to disclose all information regarding the child’s health, despite the lack of a statutory mandate to do so.

In 1981, the plaintiffs sought to adopt a child through Children’s Friend and Service (CFS). In 1982, the plaintiffs were informed by CFS that a child was available whom they might be interested in adopting. According to the plaintiffs, CFS negligently misrepresented and omitted material information regarding the child’s medical and family history. The child, who was 13 when the case came before the Rhode Island Supreme Court, was intellectually disabled and severely disturbed.

Plaintiffs asserted that they began to learn the true nature of their child’s biological family in 1991. The child’s biological mother had been diagnosed as possessing macrocephaly, pseudoepicanthal folds, a high-arched palate, tachycardia, small clinodactyly of the fifth fingers, tremors of the hands, and poor coordination. Plaintiffs alleged that all these conditions were known by CFS prior to the child’s adoption.

Prior to the adoption, the plaintiffs claimed they had been informed by CFS that the child’s biological mother suffered from learning disabilities caused solely by head trauma as a young child. However, CFS allegedly had a medical history for the child indicating that his biological mother had been diagnosed as mildly to moderately retarded with only a “possibility” that such retardation resulted from head trauma. The same document described the child’s biological maternal grandmother as “intellectually limited.” CFS never disclosed this information prior to the adoption.

Plaintiffs filed suit against CFS in December 1991. As a consequence of the agency’s alleged negligence, plaintiffs claimed they that they suffered great mental anguish and emotional distress, incurred enormous expenses for medical and psychiatric treatment of the child, and lost opportunities for proper medical and psychiatric treatment for the child.

The agency moved to dismiss the amended complaint on the ground that it failed to state a claim upon which relief could be granted. In February 1994, the trial justice denied the motion. The agency filed a petition for writ of certiorari, which the Rhode Island Supreme Court granted to determine the sole issue of whether plaintiffs had stated a cause of action under Rhode Island law.

Rhode Island is one of only a handful of states that lacks a statute requiring adoption agencies to disclose relevant information to potential adopting parents. Since Rhode Island adoption agencies have no legislative duty to disclose relevant information, CFS argued that it owed no duty to the plaintiffs. The Rhode Island Supreme Court disagreed.

The court concluded that when CFS began volunteering information concerning the child and his biological mother’s medical and genetic background, the agency assumed a duty to refrain from making negligent misrepresentations. The court also found that the plaintiffs had sufficiently pled that CFS breached such a duty by allegedly misinforming the plaintiffs of the true state of the child and his family’s medical and genetic background. The court concluded that when the plaintiffs alleged that they would not have adopted the child if they had known of his medical and genetic background and that their injuries resulted from justifiable reliance on CFS’s misrepresentations, a cause of action for negligent misrepresentation was sufficiently set forth.

The agency argued that extending such common-law liability to the adoption context would violate public policy. The Rhode Island Supreme Court disagreed, citing cases in other jurisdictions holding that public policy did not preclude plaintiffs from maintaining a claim for negligent misrepresentation in the adoption context.

The court reasoned that its decision would not create any substantial additional burdens on adoption agencies in Rhode Island. In order to avoid liability, the court held that an adoption agency need simply refrain from making representations, or if it does begin making representations it must do so in a non-negligent manner. The court cautioned that its opinion in no way rendered adoption agencies guarantors or insurers of a child’s future health. To guard against such a result, it noted that traditional principles of negligence required that the child’s condition be reasonably predictable at the time of the adoption.

The court further noted that 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 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. The court believed that extending the tort of negligent representation to the adoption context would help alleviate some of the artificial uncertainty imposed on a situation inherent with uncertainty.

For these reasons, the defendant’s petition for certiorari was denied. The order of the trial justice affirmed, and the case was remanded to the superior court for further proceedings.

Bilodeau Capalbo, LLC’s caring family law team is ready to help Rhode Island residents navigate their adoption issues. Call (401) 400-8182 to schedule your complimentary consultation today.

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