Providing Background Information to Adoptive Parents

• Why is it Necessary to Provide Background Information?
• What is Wrongful Adoption?
• What Kind of Information Do Families Need?
• Why is Information Not Available?
• What Can Agencies Do to Prepare Families?
• When Should Sensitive Information Be Disclosed?
• What About the Right to Privacy?
• How to Safeguard Against Confusion

Carol and David Conners¹ believed that their dreams of being parents had come true when the social worker at their adoption agency told them about an adorable, healthy 3-year-old named Michael who was waiting for a permanent family. But their dream slowly turned into a nightmare.

As Michael grew, his behavior became violent. He tried to strangle a neighbor's baby, killed the family cat, chased the neighborhood children with broken glass, and stole money. His parents even feared that he was plotting to kill them. "The problem is that he has extremely violent mood swings and there is no way of predicting what will set him off," says Mrs. Conners.

Mr. and Mrs. Conners took Michael from one specialist to another. One finally determined that Michael had fetal alcohol syndrome. While his birthmother was pregnant, she drank alcohol. The amount was apparently high enough that his brain development was affected. "The adoption agency had told us he was completely normal with no indication of drug or alcohol use by the birth parents," says David Conners. "We were told that his mother was just very young and unable to take care of him."

In the last 20 years, the kinds of children available for adoption have changed dramatically. Whereas in the past it was mostly healthy white infants who were placed for adoption, now couples and singles of all races adopt infants, older children, sibling groups, and children with physical, learning, or emotional disabilities. Many children waiting for permanent families were abused or neglected in their early lives; others, for a variety of reasons, were moved from one foster home to another.

The task of raising a child with a troubled past is difficult, yet increasing numbers of parents are willing to do it. In order to do a good job, these parents need to understand every piece of information that is known about a child's background.

To help adoption agency workers placing children with special needs, and to help parents considering taking these children, this factsheet answers the following questions about providing background information:

1. Why is it necessary to provide background information?
2. What is wrongful adoption?
3. What kind of information do families need?
4. Why is information not available?
5. What can agencies do to prepare families?
6. When should sensitive information be disclosed? At the end there is an appendix that shows which States require disclosure of different kinds of adoption-related information.

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Why Is it Necessary to Provide Background Information?

Most of the time, detailed information about a child's history is shared with adoptive parents, and they know what to expect. But in recent years, a number of cases like that of the Conners have appeared. Their heartbreaking experience has focused attention on the rights of adoptive parents to full and complete information about the children they are adopting. Many adoption professionals feel that this "full disclosure" should be required in all adoptions. In order to raise a child and meet a child's needs, parents need to have a clear understanding of the child's history. They need to be aware of factors in the child's past that may affect the child's ability to bond, and the child's behavior, health, and schooling.

Patti and Joe Robinson and their son, Jeffrey, are an example. Jeffrey was five when the Robinsons adopted him. Their social worker told them that he had suffered from abuse in his early years, but she did not say how long the abuse lasted, or if it would have any effect on his future behavior.

Almost from the start, Jeffrey's behavior was troubling. He wanted to be alone in his room and would pile furniture against the door to keep anyone from entering. When his new mother spoke softly to him, he turned his back or spit at her. When his new father tried to hug him, he would wince and pull away.

In kindergarten, Jeffrey hit other children and broke their toys. The Robinsons were often called to come to school and finally had to take Jeffrey out of school while they figured out what to do. Children in the neighborhood would not play with him; even the family dog ran away when he came near.

Despite intensive psychotherapy, Jeffrey's behavior did not improve. By the time he was in second grade he was skipping school regularly and disrupting class when he did attend. He stole money and food from his parents and neighbors. He threatened a woman he did not know with a knife. And he talked about throwing himself in front of a train.

As time passed, the Robinsons learned that the adoption agency that had placed Jeffrey had not told them that Jeffrey had suffered continual and severe abuse during his early years. This caused him not to trust adults or to be able to care about their feelings. The agency had not disclosed that Jeffrey had lived in nine foster homes, and in each home, the placement disrupted because of his behavior.

Faced with high medical bills and unbearable emotional upset, the Robinsons sued the adoption agency, which they said had withheld information because revealing it might have prevented Jeffrey from being adopted. The Robinsons' case was settled out of court. Other families, however, are fighting—and winning—in the courtroom, claiming "wrongful adoption."

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What Is Wrongful Adoption?

Through lawsuits alleging wrongful adoption, some families have sued adoption agencies successfully for "failing to disclose or misrepresenting the health status or background of an adopted child at the time the child was placed.² As a result, adoption agencies are being watched more closely by the courts concerning their disclosure of important information to adoptive families.

Lawsuits that have been successful fall into three categories: intentional misrepresentation, deliberate concealment, and negligent disclosure of information.

1) Intentional Misrepresentation: Deliberate Misrepresentation of a Child's Health or Background.

While informing a prospective family about a child, a social worker at an adoption agency says that the child's birthmother was a young, healthy teenager who was unable to take care of her child. In truth, the worker knows that the birthmother is a 40- year-old woman with schizophrenia who is a patient in a psychiatric hospital. The worker knows that the adoption might never happen if she tells the whole story.

If the family follows through with the adoption based on the false information it receives and is later harmed in some way—usually by having large medical bills to pay—the courts have found the agency liable for "intentionally misrepresenting a child's health or background.³

2) Deliberate Concealment: Intentional Failure to Disclose a Known Material Fact About the Child's Health or Background.

A family expresses interest in adopting a child who has tested positive for the HIV virus. The social worker does not disclose the HIV status to the prospective parents for fear they will change their mind. If the couple goes forward with the adoption based on the information they are given, the agency can be held financially responsible for the family's unexpected costs related to the child's care.⁴

3) Negligent Disclosure of Information Regarding the Child's History or Prognosis: Voluntary Provision of Inaccurate Information about a Child's Health or Background.

Negligent disclosure occurs when an agency volunteers information about a child's history or the future expectations of a child's health, but the information given is not correct. An example is an agency that shares with a family that there is a history of Huntington's disease in a child's family, but relates incorrect information about the possibility that the child will get the disease.⁵

When the courts have found agencies liable, the adoptive parents have been awarded the money for medical expenses that they had not anticipated. The courts have not been as reliable when families sue for emotional distress. The response varies from State to State. In addition, State legislatures are beginning to pass laws requiring disclosure, including provisions in the laws for financial costs to agencies if they fail to comply with the law.

"It is unfortunate," says Katherine (Kay) Donley-Zeigler, trainer/consultant with the National Resource Center on Special Needs Adoption in Southfield, Michigan, and a nationally known expert on disclosure, "but it took the threat of million-dollar lawsuits for some agencies to wake up to the problems that develop when families are not given the information they need to raise a child."

In 1986, the Ohio Supreme Court ruled for the first time that adoptive parents could recover monetary damages from an agency for "wrongful adoption.⁶ The case, known as Burr vs. Board of County Commissioners of Stark County, was that of Russell and Betty Burr, who had adopted a 17-month-old boy named Patrick through the county child welfare department. The Burrs were told that the baby was healthy, and that his mother was 18 and unmarried. After his adoption, Patrick began to have some problems. His speech was hard to understand and he had poor motor skills. In elementary school, he was classified as educably mentally retarded. Later he was diagnosed with Huntington's chorea, a genetically inherited disease that affects the central nervous system.

When the Burrs succeeded in obtaining a court order to open the sealed adoption records, they learned that Patrick's mother was a 31-year-old patient at the State psychiatric hospital. They did not know who the father was, but it was likely that he too had a psychiatric illness. Patrick had had a fever at birth, and was functioning at a level much lower than other children his age. Future evaluations were recommended. While caseworkers knew this history, they did not share it with the Burrs. The Burrs sued and were awarded $125,000.

Soon afterward, California and Minnesota courts allowed similar lawsuits. In California, a boy named Michael had been born with a "port wine stain," a large reddish birthmark on his face and upper body. May Trout, who adopted him, was told that it was "merely a birthmark." She was not told that a doctor who examined him would not make a definite statement about what the port wine stain would mean later on.

Eleven years later, doctors found that Michael had Sturge-Weber syndrome, a condition that is associated with mental retardation and epilepsy. Michael's mother sued the agency, claiming that "the county knew or should have known" that the stain was a sign of Sturge-Weber syndrome. The court ruled that an agency could be held liable for fraud and that "the failure to disclose a material fact within the agency's possession—in this case that the examining physician would not render a diagnosis for Michael—at the very least suggests that the nondisclosure was fraudulent.⁷

In Minnesota, a couple was asked by a social worker if it mattered to them that there was a history of incest in the family of a child they wanted to adopt. They said it did not, but they were not told that the child they would be adopting had been conceived as a result of sexual relations between two members of the family. Soon after the adoption, the child showed obvious behavior problems. He was jumpy and easily agitated, set fire to furniture, and had attention deficit disorder. Not until the parents sought to adopt a second child did they learn that the birth parents of their first child were brother and sister. They also learned that the birth father was considered borderline hyperactive and had required counseling as a child. The court ruled that the adoptive parents could bring a lawsuit against the adoption agency based on negligent misrepresentation.⁸

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What Kind of Information Do Families Need?

According to Donley-Zeigler, adoptive families "absolutely" have to be given, and should ask for, the following information:

1. If the child was in foster care, why did he or she first come into care?
2. With whom has the child lived? This should include everyone who has cared for the child from birth to the present.
3. Why was the child moved from one placement to another? Was there new or different abuse or neglect in subsequent placements?
4. What is known about the birthmother's pregnancy and the events soon after birth? Was it a difficult or easy birth? Did the birthmother drink alcohol or take drugs during the pregnancy? How much?
5. What is the child's complete medical history? This should include the child's medical history from birth to the present, including genetic information about the birthparents if that is available. Childhood illnesses or special conditions such as asthma should be shared. When looking at medical records, it is important to look closely at the doctor's comments and recommendations, especially if he or she suggested that certain tests be done and they were not. If they are done, the tests may provide further helpful information.
6. What attachments has the child formed? How did the child relate to his/her birth family and foster family? Is he/she able to bond with others? Does he/she still visit with his siblings?
7. What adjustment problems has the child had in the past? How did his/her behavior change when he/she was moved into another home? Which of the child's initial problems are not problems any more? Which still need to be addressed?
8. What are the child's positive characteristics? What are the child's likes and dislikes? Does he/she have any special skills or hobbies?
9. How does the child react to stress? Does the child know his/her own limits? How does he/she cope with them?

New Jersey Adoption Exchange Coordinator Kay Pride says that it is her State's policy to release all non- identifying information to adoptive parents. "It is in no one's best interest to withhold information from prospective parents. They will be unprepared to take care of the child, so he or she comes right back into foster care, having experienced yet another rejection. We provide families with a summary of the child's life, a biographical sketch of the child. We also provide a summary of the birthparents' lives, or as much as we can find out about them. Sometimes, however, we just don't have the information."

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Why Is Information Not Available?

Sometimes information that would be helpful to adoptive parents is not available. Much of the information about a child's birth family is never recorded. Part of the problem results from the way children come into foster care in the United States.

"Most of the time a child comes into care because of traumatic events," says Donley-Zeigler. "The intake worker or child protection worker is the first one to see the child. Her goal, and rightfully so, is family reunification. So, she may not take down all the family history that an eventual adoptive family would need. Then, the foster care worker gets the case. She decides what she feels is important to include as part of the child's history. A lot of this is based on what is needed for State and Federal funding: Where is the child living? Are there any special medical problems? What other special resources are needed? Rarely is there anything about the child's day-to-day behavior or interactions—important information that would be helpful to families who need to know how earlier life events affected the child."

Donley-Zeigler believes that there is a movement for agencies to develop uniform procedures about the information that needs to be recorded, from the first person who processes the child as he or she enters foster care, to the adoption worker who gets the case—sometimes years later—when it is decided that family reunification is not possible.

There are a number of other factors that influence the availability of background information to prospective adoptive families. These include:

• agency policy;
• the personal philosophy and bias of the worker assigned to the child's case;
• the accuracy and depth of information obtained by previous workers;
• the current worker's ability to sort through the information; and
• the current worker's skill at helping the prospective family understand the implications of the information.⁹

Depending on any one or a combination of these factors, prospective adoptive parents may or may not receive the information they need to make an informed decision about a potential adoption.

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What Can Agencies Do to Prepare Families?

With increased concern about a family's need to fully understand the special needs of the child they are adopting, agencies are providing more comprehensive services, beginning with thorough preparation for adoption and continuing after placement. Many agencies now recognize that adoption does not end when final papers are signed. To the contrary, adoption is now looked upon as a lifelong process.

Social workers must help parents make good decisions about the kind of child they are realistically able to handle. They must help them understand the meaning of the term "special needs" and be clear about how challenging a particular child could be. Parents should be encouraged to ask all the questions they need to ask to make an informed decision about whether a child or group of children is right for them. They also need to know their own limits. Although a permanent, loving family will go far to help a child, it is not necessarily a cure-all for all of his or her problems.

Paulette Donahue, M.S.W., a family therapist and consultant with Parents and Adoptive Children's Organization of Western Pennsylvania, believes that some families have the idea that with enough love they will be able to help a child overcome a past that may include severe abuse, neglect, and many moves in and out of foster homes. Sometimes agency workers let them believe this, when they know how difficult overcoming that past could really be. "It's been my experience," says Donahue, "that, overall, even the most interested parents—people genuinely desiring to adopt special needs children—have no deep understanding of what they are committing to." They have to understand, Donahue says, that "when a child has been battered or unloved, much of the developmental process closes down and is replaced with an emptiness."

Adopting such a child takes enormous commitment and a willingness to measure success in very small steps. The behavior or problems of some seriously disturbed children may not improve all that much, even in the most prepared, committed, and loving adoptive families.

Ann Hartman, author of Working With Adoptive Families Beyond Placement, believes adoptive families are much better prepared today than they were in the past, but agencies still have not been able to "drive home the reality of special needs adoption, which often requires special skills and support from community resources." In addition to sharing all known information about a child's history, it helps if workers provide families with the following:

• Connections with adoption support groups or an adoptive family that can act as a "buddy";
• Information about support groups for adopted children;
• Assistance with finding a therapist who is familiar with adoption issues to help prevent or resolve problems;
• Help in finding crisis intervention;
• Information about respite care; and
• Help with applying for subsidies for medical and/or therapy costs, if needed.

In addition, adoptive parents should have an adoption worker who answers phone calls, knows them well, has faith in their parenting abilities, and helps them find ways to foresee and resolve problems.

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When Should Sensitive Information Be Disclosed?

Information should start flowing to prospective families as soon as they are considered to be serious candidates for a specific child. But not all information needs to come at once. It can be told in a series of steps, beginning with presentation of the child, at visits, and during the first 30 days of placement.

However, it is not good to leave all of the "bad stuff" until last. "You don't want families to invest themselves emotionally and then hit them with a background that includes severe abuse or a history of fire-setting," says Donley-Zeigler. "If you wait until the child meets the family to reveal the most serious information, the child may have to deal with yet another rejection or disappointment."

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What About the Right to Privacy?

Some social workers find it difficult to tell lots of background information about a child's birth family to the people considering adoption, because if they do not take the child, the family has learned very personal details about the birth family for no reason. Traditionally little information about the birthmother's pregnancy or family was passed on to the adoptive family. This practice is changing, even with the adoption of infants.

With special needs adoptions, particularly those of older children, not giving out information is not appropriate, and it could possibly be harmful. "It's ridiculous," says Donley-Zeigler. "Agencies won't release information about a child's past, but the child has the information. They can tell you where they lived, with whom, and, many times, why they had to leave. Their lives do not begin when they are adopted!"

Donley-Zeigler also believes that too many agencies hide behind the privacy issue. "It's ironic that agencies are entrusting these families with raising the children, but they don't trust them enough to give them all of the information they'll need if they are to be successful."

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How to Safeguard Against Confusion

Workers and families are realizing that they cannot rely on memory when sharing information about a child's past.

Some responsible agencies instruct families to write down everything the agency tells them about a child. At the same time, workers write down what they think are the important parts of the discussion. Sometimes the conversation is recorded.

Both sets of notes are put together, with a copy given to the family and a copy to the agency. If and when problems arise, families can refer to their notes and review the history that was initially given to them. Agencies can use this written record to protect themselves against lawsuits claiming that they failed to disclose full information before placement.

Conclusion

Most adoptive parents receive the information they need about their child's history before adoption. The courts are beginning to force agencies that have not fully shared background information to change their practice. Agencies are responding by doing a better job of preparing families before placing children with them. They continue to share information throughout the placement process. And instead of forgetting about families after an adoption is final, many provide postadoption services.

Courts also are telling agencies to disclose all information that is known to be significant to the future of a child, and to make every effort possible to seek out information that is not readily available but may be important in raising a child.

Only when adoption agency staff are always careful about tracking down a child's history and are honest about sharing it with prospective parents, will a child's best interest be served in his or her new adoptive family.

Written by Gloria Hochman and Anna Huston of the National Adoption Center for the National Adoption Information Clearinghouse, 1994.

Appendix

According to the Child Welfare League of America in its 1993 publication Adoption and Disclosure: A Review of the Law, the States listed require the disclosure of the noted information to prospective adoptive families (actual wording from State legislation).

Prenatal and Neonatal Information

Illinois: Drugs or medications taken by the child's biological mother during pregnancy.
New Jersey: Any drugs or medications taken during pregnancy.
New York: Any drugs taken during pregnancy by the child's natural mother.
Oklahoma: Drugs taken and consumption of alcohol during the pregnancy of the mother.
Oregon: A gynecological and obstetrical history of the biological mother.
Texas: History must include birth, neonatal and other medical results.
Utah: The adoptee's medical history including neonatal history.
Wyoming: Any drugs or medications taken by the child's natural mother.

Child's Medical Problems

Oklahoma: Diseases, illnesses, accidents, allergies and congenital defects.
Oregon: Diseases, disabilities, congenital or birth defects.
Washington: The child's x-rays, examinations, hospitalizations, and immunizations.

Child's Developmental History

California: Developmental history and family life.
Iowa: Complete developmental history.
New Jersey: Information relevant to the child's development, including personality and temperament.

Child's Psychological and/or Psychiatric History

California: Psychological evaluations.
Illinois: Psychological and psychiatric information.
New York: Any psychological information on the child.
Oklahoma: Psychological evaluations.
Texas: History must include psychological and psychiatric history.
Utah: The adoptee's medical history including psychological evaluations.
Washington: A complete medical report concerning the mental handicaps of the child.

Social History

Alabama, California, Florida, Kansas, New Mexico, Massachusetts, Tennessee, Texas, Utah, Washington, Wisconsin

Educational History

California, Texas, Massachusetts

Bibliography

Associated Press. "Agencies Blamed in an Adoption That Went Awry." The New York Times, August 9, 1992, p. 38.

Busch, Les, ed. The Mental Health Challenges of Special Needs Adoption. Portland, OR: State of Oregon, Children's Services Division, 1987.

DeWoody, Madelyn. Adoption and Disclosure: A Review of the Law. Washington, DC: Child Welfare League of America, 1993.

Donley-Zeigler, Katherine. "An Adoptive Parent's Need for and Right to Full Disclosure." Conference Presentation, Ottawa, Ontario, Canada (audio cassette). St. Paul, MN: North American Council on Adoptable Children, 1992.

Grabe, Pamela V., ed. Adoption Resources For Mental Health Professionals. New Brunswick, NJ: Transaction Publishers, 1990.

Hartman, Ann. Working with Families Beyond Placement. New York: Child Welfare League of America, 1984.

Lambert, Wade and Moses, Jonathan. "Couple Gets $3.8 Million in Adoption Suit." The Wall Street Journal, October 30, 1991, p. 157.

LeMay, Susan Kempf. "The Emergence of Wrongful Adoption as a Cause of Action." Journal of Family Law, vol. 27 no. 2, 1988–989, pp. 475–88.

State of Minnesota. "Liability Misrepresentation by Agency." ABA Juvenile and Child Welfare Reporter, vol. 11 no. 8, pp. 117–18.

Zolper, Thomas. "Child `Emotionally' Battered, Parents: Adoption Staff Kept Problems Secret." Bucks County Courier Times, January 13, 1994, pp. 1-B, 4- B.

Katherine Donley-Zeigler's personal notes from her training sessions for the National Resource Center on Special Needs Adoption on "Disclosure and Adoption" were also used in writing this factsheet.
Internet links added by Adoptions.com 2000 - 2008

Notes

¹ The names of some families have been changed to protect their privacy.
² DeWoody, Madelyn, Adoption and Disclosure: A Review of the Law, Child Welfare League of America, Washington, DC, 1993, p. 1.
³ Ibid, p. 9.
⁴ Ibid, p. 9.
⁵ Ibid, p. 11.
⁶ Ibid, p. 11.
⁷ Ibid, p. 7.
⁸ Ibid, p. 8.
⁹ Donley-Zeigler, Katherine, "An Adoptive Parent's Need for and Right to Full Disclosure," North American Council on Adoptable Children Conference, Ottawa, Ontario, Canada, 1992 (audio cassette).

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For more information, contact the Child Welfare Information Gateway (formerly the National Adoption Information Clearinghouse) at info@childwelfare.gov.