Court of Appeals Finds Punitive Damages Are Not Available In Wrongful Adoption/Fraud

To what extent can adoptive parents recover when the child they adopt turns out years later to have some type of mental illness? That was the issue decided by the Court of Appeals today in Ross v Louise Wise Servs., Inc., 2007 NY Slip Op 03793. The case involved an adoption that goes back to 1960. In that year, the plaintiffs applied to the defendant adoption agency and requested a “healthy infant from a healthy family,” and that “it would be nice if the baby’s birth family had an artistic background.” In 1961, the plaintiffs were offered a boy, and in response to plaintiffs’ questions about the health of the baby and his biological family, the agency told the plaintiffs that the child was “a demanding baby who likes attention.” The Agency did not, however, disclose that the child’s biological family suffered from emotional disturbance. Both the child’s biological grandfather and father suffered from schizophrenia, and the biological mother had other emotional instability, and she eventually committed suicide in 1973. The adoption was finalized in 1962, and by the time the child was four years of age he began to exhibit troublesome behavior and the plaintiffs sought professional help. Eventually, when the child was 34, he was diagnosed as a paranoid schizophrenic.

When the child was 9 years old and continued to have increasing difficulties, the plaintiffs began asking the agency if there could have been any problems with the child’s biological family. The agency never advised the plaintiffs of any emotional instability or schizophrenia. Eventually, the plaintiffs commenced an action in 1999 for wrongful adoption/fraud, negligence and breach of fiduciary duty, and intentional infliction of emotional distress [the later two causes of action were dismissed because of the statute of limitations and will not be discussed]. In their claim, the plaintiffs stated that they would not have adopted the child if they had been told about the schizophrenia in his biological family, and that psychiatrists might have treated him differently had disclosure been made earlier. In the wrongful adoption/fraud cause of action, the plaintiffs sought both compensatory and punitive damages.

The Court of Appeals found that the punitive damages claim should have been dismissed. At trial there was conflicting evidence that at the time of the adoption whether it was known that schizophrenia could be biologically inherited, and whether it was wise to advise adoptive parents of familial mental illness. For instance the agency introduced evidence that at the time it was believed that mental illness could be avoided if the child were placed in a loving environment, and that to disclose family history of mental illness would only stigmatize the child and influence the adoptive family adversely on how they would raise the child. Based on such evidence, the Court, while trouble by the agency’s concealment, found that the agency’s actions did not rise to the level of malicious or vindictive conduct, or conduct involving a high degree of moral turpitude, to justifying punitive damages. The claim for compensatory damages survived.


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