On demand 1h 7m 33s Intermediate

Ethically Avoiding Attorney Liability in Handling Adoptions

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Ethically Avoiding Attorney Liability in Handling Adoptions

This course will analyze relevant case law and ethics opinions against attorneys for professional liability concerns as well as lawsuits arising from negligent and intentional actions for failure to provide adoptive parents with full or accurate information regarding the child’s physical or psychological background /medical records, wrongful adoptions, and setting aside adoptions. In this practice course, attorney Colleen Quinn, will review recommendations, best practices, and sample language, including the use of exculpatory clauses in contracts and legal and medical risk agreements that can lessen an adoption professional’s liability. 

Transcript

Welcome to Ethically Avoiding Attorney Liability in Handling Adoptions. Thank you, Quimbee, for having me this afternoon. I'm Colleen Quinn. I am with the Adoption and Surrogacy Law Center in Richmond, Virginia, and I've been doing adoption work now for almost 35 years. Graduated from the University of Virginia Law School, did my undergrad at William and Mary, and clerked for Chief Justice Carrico on the Virginia Supreme Court. And then I launched into private practice in one of my favorite areas, of course, is in the adoption arena. It's a great area to practice involving family building, but at times it can be a little bit thorny when we get into sticky adoption situations, especially contested adoptions. And that's really where our focus is going to be today. And hopefully you're going to get some ethics credit as well. We're going to go for just over 60 minutes. I'm not going to read every single slide to you, because I do have about 90 slides or so. So that's a lot to pack in. In a 60 minute segment, I will try to share a couple of war stories with you. And much of this presentation is based on real life scenarios from real life examples from my practice, as well as some case studies that are out there. So what are we going to cover? We're going to review the types of cases that can prompt liability, including the case law and ethics opinions against attorneys for professional liability. We're also going to cover lawsuits from the negligent and intentional actions for failing to provide adoptive parents with full and accurate information regarding the child's medical records or background. We're also going to look at the tort of tortious interference with the parental relationship, which originated out of Virginia, where I'm located, and that can create liability for an attorney or an adoption entity or agency in failing to properly address the rights of a birth parent. So that's a really important case to know about. And some of the lessons learned from that case. And then throughout the presentation, I'm going to have some recommendations and sample language for your retainer agreements, including the use of exculpatory clauses in contracts and some legal and medical risk agreements. So I'm sharing that information with you, and hopefully you'll incorporate those documents into your practice. So we're going to cover a whole lot in just our short time together. First of all, I'm going to tell you please excuse my use of the term birth parent. It's in most state adoption statutes, including those in Virginia. It's a whole lot better than the term natural parent, which is pretty offensive to placing parents. I did have a program that I gave up in Washington, DC a number of years back. I was on a panel with some social workers and in front of about 500 people, and I kept using the term birth parent. And then one of the social workers on the panel said, well, Colleen, you know, that's not a acceptable term. And I said, oh, dear, what would be an acceptable term? And they said it would be an expectant parent with a placement plan. And I having been verbally smacked in front of this whole large audience, I said, well, you know, we lawyers do get paid by the word. So I tried to deflect that, but I've always remembered trying not to use the term birth parent. I have asked most placing parents if they are offended by that term, and repeatedly I've heard no, I am a birth parent, but I do try to use the term placing parent when I can instead of using the term birth parent. Just having learned my lesson from that presentation. All right. So the primary cases that we're going to cover are going to include lack of due diligence, insufficient information being sought, false or misleading information being provided. We're going to talk about incarcerated birth parents. We're going to talk about birth parents that have drug or alcohol addictions or issues with mental illness. We're going to talk about the Indian Child Welfare Act, which we call Icwa. I'm not going to get into a lot of detail. That's a really complicated topic, just enough for you to be able to be aware of when it might be implicated. We're going to talk about grandparent intervention. We're going to talk about legal malpractice cases, cases of birth parents in the active military. Talk a little bit about breach of fiduciary duties. And then we're going to talk about when the birth parent does not speak English or the placing parent. And the primary claims or theories in these cases include fraud, negligent misrepresentation. Negligent disclosure, conspiracy. I mentioned the tortious interference, wrongful adoption, negligent supervision, breach of contract, intentional infliction of emotional distress, or a negligent infliction of emotional distress. Breach of fiduciary duty. Of course, we've got legal malpractice. And there's also the issue of a bar complaint. So the practical considerations in these cases, especially as the cost to the parties, and that's not just the financial cost, but also the emotional and mental cost. I've had these contested adoption cases run as high as $150,000 to the adoptive parents, including one case where my adoptive parents hired three different private investigators over across several different states in the case. And so the financial cost can be a lot. The emotional and mental cost of the parties can be huge. There's a lot of stress associated with these cases. You've got stress on both sides of the fence. You've got potential biological parents that are looking at losing all contact with their child, and you've got adoptive parents that in many cases have closely bonded with the child and are now risking the loss of the child, potentially going back to the biological parents. There's risk on both sides. Oftentimes there's the issue of sufficiency of resources, especially monetary resources. You've got issues of negative publicity. And of course, you've got to think about the implications for the child in the future being the product of a contested adoption or situation. In some cases, the attorney or the agency might face a potential loss of their license or suspension of the license and may even have to pay fines. So why gamble with these situations? We want to make sure that we we try to avoid them as much as we can and recognize when we might have a contested situation or a situation that might involve liability. So as I mentioned, the contested adoptions can be very expensive. And that can include not just costs for attorney fees and costs, but also expert witness fees, the cost of a guardian ad litem that might be appointed for the child, or you might have a guardian ad litem appointed. In some cases, if a biological parent has mental illness issues, is incarcerated, has drug or alcohol issues, and then oftentimes the adoptive parents pick up the cost of the placing parents attorney in addition to their own attorney. And of course, I mentioned the cost of private investigator fees as well. And I mentioned that significant thought has to be given to how the child's going to feel at some point. Is the child going to find out at some point they were taken away from their biological parents. Are they going to read about the case in a published decision? And how did the prospective adoptive parents feel about fighting a birth parent for the child? Oftentimes, it's hard to decide what's truly best in these cases, especially if the biological parent parenting the child might result in some detriment to the child due to the biological parents say, mental health or substance abuse issues. So we're going to launch now into some stories, some case scenarios, some examples. And the first one is the inadequate search or lack of due diligence in a case. So in this case basically what happened was I inherited a case from an adoption agency, and I was instructed to finalize the adoption. When I got the file, I was a little bit concerned because I saw that the agency attorney had sent notice to the birth father while he was in prison, and a letter came back from the prison saying that the birth father had just been released prior to the letter arriving, and then the agency did nothing more to locate the birth father. Similar situation would be if notice was sent to an old address and the birth father, and it came back as undeliverable. So what happened in this case, where the birth father had just been released from prison, is I inherited the case and the child had been in the adoptive parents home for about eight months. And I told the agency we might have an issue here because although we've checked the Virginia birth father registry, I think my judge might have a problem with the fact that nobody did anything more. After getting the letter from the prison saying that this guy had been released. And sure enough, my judge did have an issue with that, contacted me and said, Miss Quinn, I don't feel this is sufficient. I would like for you to do what you can to find the birth father. Of course, I had to let the adoptive parents know that. Now the judge was wanting us to find the birth father had to let the agency know. The adoptive parents now are on pins and needles. They thought everything. You know, all the I's have been dotted. All the T's have been crossed. We tracked down the birth father. He was right there in the same town where he'd been released from prison. And was pretty easy to find. I must say. And once we reached out to him, he said he wanted DNA testing done. And of course, this made the adoptive parents and the agency even more nervous. So it wasn't clear whether he was going to contest if he was the father. But then it turned out the DNA test results came back and he was not the dad. And so fortunately, at that point, we could not locate the biological mother to get any more information about who the biological father might actually be. And the court was willing to accept my second check of the Virginia birth father registry and then allow the adoption to go forward. But obviously, this cost a lot more money to my clients and cause them an incredible amount of stress in knowing that the court required us to actually locate the biological father and then the biological father asking for DNA testing, not knowing whether he was going to contest the case and ask for the child back. Obviously, if we had just done a little bit more in the beginning, after that notice came back from the prison saying that the guy had been released and then the birth father had been located at that time, then all of that could have been nipped in the bud. So when we look at diligent search deficiencies, I've included a number of cases there. Thank you. Jeannie Tate, one of my academy colleagues, the Academy of Adoption and Assisted Reproduction Attorneys. She's out of Florida. So those are all Florida cases. But she and I have both shared and borrowed PowerPoints back and forth and thought these cases were really good examples of doing diligent searches and some of the implications when a diligent search was not done. So let's go to the next slide, which is avoiding a contested adoption due to inadequate searches. There really is no excuse to not locate someone in today's age of technology. I just got off a call last week where the clients are like, well, how do we know we're going to be able to find, you know, the guy? And I said, it's pretty hard not to find people nowadays. We've got Westlaw and Lexis searches. As soon as they pay a utility bill at their new apartment that they just moved into, that information now gets put into public databases so we can find people through Facebook, including Facebook Messenger, through Myspace, through Instagram, through Google searches, through paid people finder searches, through Lexis and Westlaw searches by contacting their friends or relatives, by doing reverse phone lookups, by even hiring a private investigator. And judges want to know what has been done to try to find this person. So we do want to take that extra step and make sure we can satisfy judges. And I'll tell you real quickly about the Barry versus Barnes case. It's a case where I represented the birth father went up to the Virginia Supreme Court. And in this case, the issue was whether my client, the birth father, had gotten proper notice of his right to register with the Virginia birth father registry in the case. Our statute basically used the word or, and the question was one of statutory interpretation. And did John Barry have the right to register either the after the mailing of the notice or up until ten days after birth? And at that time, the Virginia Supreme Court said it was either or. And he had up until that ten days, and he had in fact, registered before the child was born. He just had not gotten a copy of the the letter. The letter actually was put in the wrong mailbox in his apartment complex. So that statute has since been changed. But given the constitutional right to parent, courts can be pretty squeamish about notice issues. Another case I was involved in that went up to the Virginia Supreme Court was the banana versus Quinn case. And in that case, the legal custodian grandmother did not get official legal notice in her stepparent in the stepparent adoption, her her daughter had committed suicide. The daughter's husband proceeded to do a stepparent adoption without grandma knowing. Our statute at that time did not clearly provide for notice to a legal custodian. Now it does provide for such notice. So you do want to know about specific state law notice provisions. If you're doing a relative adoption out of another state and there's a party that's in Virginia, then you're going to want to check Virginia law with regard to notice provisions as well. All right. Let's talk about the next scenario. So in this case the birth mom wrote unknown with regard to the birth father on the agency background forms, nobody from the agency questioned what she meant, and they just assumed that she was going to sign an affidavit of unknown paternity. The child gets placed into my client's home, and it just so happens the placement was by an agency. But the adoptive parents lived in Virginia, and the placing mom was in Virginia, so it ended up being a Virginia parental placement. We got a attorney, was hired for the birth mom, and I said to the attorney, when you meet with your client, can you please ask her what she means by unknown? Because our judge is going to question why the birth father is unknown. The guardian ad litem, the attorney for the baby, is going to probably question why the birth father is unknown. And as soon as that attorney met with the birth mom, the birth mom said she put unknown because it was one of two guys. One guy was incarcerated and one was the guy she was living with. And when we sent the requisite notice to both known possible dads who wanted the parent, both of them said that if they were the dad, they would want they did want a parent. Now, at this point, the child's been in the adoptive parents home for several months, so how could this have been avoided simply by asking questions about the answers put on the background forms and doing more of a due diligence and more extensive questioning. So to avoid a contested placement due to inadequate questioning, we do want the questionnaires that placing moms are filling out. We want the information about the birth father or birth fathers to be pretty extensive, and then an attorney or social worker should question that, placing mother on all the information that's been placed in question extensively with regard to any birth father identity. All right. So let's go on to the next scenario. And in this case, the birth mother avoided giving full information about the birth father. The child was placed in the adoptive parents home after she was pressed on it. It turned out that the birth mother or the placing mother actually still lived with the birth mother and his mother. And what happened was, after we learned, after she was pressed and we learned the birth father's identity, I sent a notice to the birth father. I didn't know at that time that also he was living with his mother. But I got this phone call with this woman just screaming at me on the phone, screaming at me. And I'm like, ma'am, ma'am, please calm down. I, you know, I'm just the person that sends out the notice and and anyway, she the woman screamed at me and the birth father was clearly on the phone with her. The woman screaming at me was his mother, the grandmother. And she's screaming at me that the birth mother had told her son that the child had died in childbirth and had been cremated, and that family, the birth dad and his mother actually had had a funeral for the child pretty bad. And so my next slide is basically Pinocchio saying, whoops, I told a little lie. Well, that was a pretty much big lie. And it turned out that the birth father and his mother contested the adoption and the child again, that had been placed in the adoptive parents home for several months had to be returned to the birth father's family. At that time, the birth mother ended up deciding not to place once she had all the pressure from the birth father and the birth father's mother. So I can tell you some more war stories. If we have time, but we do want to try to. Politely interrogate our placing parent clients sometimes. So the first thing we want to do is make them feel empowered about their adoption plan and ideally, develop a rapport and explain to them that for their plan to work, that any and all birth father information needs to be disclosed and we can even share more stories with them. Most placing moms just need to be educated on the importance of sharing any and all information about the possible birth fathers. It's to protect their plan, and we want to basically say that their failure to be truthful can ruin their plan, and we want their plan to work. This, after all, is their placement plan. Now, not all states actually require the placing mom to disclose the birth father. And and in those cases, it's it's purely a matter of following that state law. But most states are going to allow, provide for or require some sort of interim location or some sort of inquiry into the birth fathers situation. So when we are working with a placing mom and, you know, in some cases they might be scared of the the biological parent, it might be a case of, of abuse, it could be a case of sexual assault. It could be they're embarrassed because it was, you know, a guy that they did it with in the bathroom at the back of the bar. You know, there's no story that I haven't heard. And so I want to make them feel comfortable with sharing their story, even if it might be embarrassing. We do want to discuss any inconsistencies. For example, the placing mom might say she doesn't know where the birth father lives, but when I continue to ask more questions, she tells me that she actually works at the same restaurant with the guy. So clearly that guy is capable of being identified and found. We might have to use some sort of trace system or do some of those search mechanisms that I mentioned earlier. We do want to check the placing mom's story against the forms that she's filled out. Look also at the medical records. Sometimes she might say that she doesn't really know who the birth father is, but there's something in the hospital birth record that actually discloses who that person is. Or that person may have even come to the hospital, and it might be noted in the medical record. Sometimes you might need an independent social worker to kind of tag team with you. So you might be legal counsel, but also might have a social worker in many cases. And in many states, it's it's the case that the placing parent has to be offered adoption options counseling or some sort of counseling by a social worker. And the academy actually has a proclamation which encourages placing parents to have mental health and adoption option counseling. So it might be that you want to line up somebody in addition to you asking the questions, but also have an adoption social worker ask a lot of the questions as well. We want to make sure that the placing mom knows that she's going to have to sign an affidavit that's going to be under oath, and in many cases, under penalty of felony and a possible perjury conviction. So we want to make sure the placing mom understands the the importance. And it's actually a crime to lie. In many states about or not disclose the birth father's identity. If we're in a sticky situation, we may want to contact our state Bar ethics hotline and document in the file that we've contacted the hotline. If you are in a sticky situation, you may want to consult with respected attorneys or experienced attorneys in your state. And in some cases, if you think that the placing mom is is committing a fraud on the court and on the adoptive parents, you may actually have to withdraw from the case and get out of that case. All right. So when we talk about fraud or wrongful adoption cases, that can mean a lot of different things. It could be a case brought by a placing parent who thinks that he or she was defrauded with regard to their due process rights. Sometimes fraud cases can be brought against the birth mother by the birth father if if she's kept him out of the picture. For example, the case where the birth mom lied and said that the child died in childbirth and that family had a funeral for the child that apparently had been cremated. So and then also other fraud or wrongful adoption cases can be the adoptive parents. That might be. Um, suing. Um, if they're if they have not gotten sufficient information and whether or not they can be sued sometimes depends on whether they were involved with any fraudulent activity committed by the birth mother. So another type of fraud case, wrongful adoption, is where the adoptive family believes the adoption agency or the placing parents fraudulently represented information regarding the child. In such cases, the placing parent might have lied about extensive drug or alcohol use, or the adoption agency may have fraudulently represented a child's physical or mental health condition. And so we have to be aware of the possibility of fraud whenever we're working in the adoption world. It doesn't come up very often, but it can come up unexpectedly in cases. You wouldn't think so. Fraud cases do demand a high burden of proof, and they're difficult cases in which to prevail. But that said, the more disclosure and honesty we have in adoptions, the less chance for any sort of fraud action. So in your materials, I've included a number of different cases about wrongful adoption and failure to disclose. I'm just going to kind of, in the interest of time, zip through those cases pretty quickly, and you can read up on them a little bit more. But the helper versus Jewish Family and Children's Services case was a Pennsylvania case, and that was a wrongful adoption based on the agency's failure to provide information to the adoptive parents about the biological mother's mental health history of schizophrenia. And it was also a claim of negligent failure to disclose. And in that case, there was a verdict of 2220 5000 for the parents and 75,000 for David, the child. Now on appeal, the wrongful adoption claim was dismissed because at the time of the adoption, the child David's problems were not a foreseeable consequence of his birth mother's medical mental health history, but the failure to disclose that she had a medical mental health history claim was upheld by the court. By the appellate court in the Ross versus Louise Wise services case out of New York. Again, that was another case where the agency did not reveal the child's family history of medical illness and schizophrenia to the adoptive parents, and the child ended up having enormous issues at a great cost to the adoptive parents. The adoptive parents divorced over those issues, and one was diagnosed with severe clinical depression, and in that case, the court held that they limited the plaintiff's potential recovery, that is, the adoptive parents recovery of compensatory damages to the extraordinary out-of-pocket expenses of raising their adoptive child to age 21, that still to raise a child can be pretty darn expensive. And the court also allowed the punitive damages claim to proceed because the agency continued to fail to disclose even after the adoptive parents continued to ask about the information. A case out of Michigan. The dresser versus cradle hope case. In that case, the defendants were the adoption agency that arranged the adoption and actually the travel agency that was involved also got sued. And in that case, this is pretty interesting that the dresser who the adoptive parents there claims their negligence claims against the agency and the travel agency were barred because they signed a waiver language and their agreement with cradle of Hope, and so they could not go forward on a contract claim because they had signed the waiver language. But the negligence claim actually brought on behalf of the child. Mikhail was not barred because Mikhail as a child, was not a party to the contract, and so the court let his claim proceed. So what are the lessons we've learned? You want to make sure that you've got adequate waiver and disclosure language in all of your attorney retainer agreements. You want to disclose disclose, disclose share everything. When we are in these cases, we do need to be familiar with the, you know, the professional rules. And we want to make sure that we follow the rules of confidentiality. But in many of these adoption cases, the rules of confidentiality are reversed. Basically, in most cases you keep client confidences. But in adoption cases, we need to share with the adoptive parents any of the biological parents mental health, social, educational backgrounds, etcetera. So we want to encourage the placing parents to be forthright and have them sign background questionnaires under oath or under penalty of perjury. And we want to make sure that everything is disclosed. And it's the reverse of the normal confidentiality rules that we have. You know, where ethically we typically don't disclose in adoptive cases, we do need to disclose. We also want to be aware, such as in the in the dresser case, that the child could have a cause of action for fraud or failure to disclose and keep that in mind. All right. So I've included in your materials some exculpatory clauses and that's, you know, an exculpatory clause as part of an agreement which relieves one party from liability. So in the dresser case, it was due to that exculpatory clause that the adoptive parents action could not go forward against the agency. So we do want to have those, but then we can't prevent the child from having a claim. So the only way to do that is to make sure we don't commit fraud and that we disclose, disclose, disclose. So I've included in your materials some sample disclosure or disclaimer and waiver language. That's basically saying I'm making my adoptive parents understand that the information that's being obtained from the birth parents may not be complete. It may not be accurate, it may not be fully truthful. And I won't go through that whole language there. But you are welcome to steal that language. In fact, please steal that language and use it in your adoption cases. And then I've got a sample medical risk agreement provision when the adoptive parents. Are getting ready to take the baby from the hospital, we want to make sure that they understand what tests have been done, what tests may not have been done, some of the risks that might be associated with taking that child from the hospital. And then I've got a medical record transmission sample. So if you are getting medical records on behalf of your clients, you may want to have your client sign off that, you know, not everything may be in the medical records. And we this language here says to the adoptive parents, hey, we've got these records for you, but you may want to you probably want to take them and talk to a pediatrician and talk to a doctor and have them go over these medical records and understand that not all medical records include all the potential health problems that the child might have. All right. So we're going to move on. And we're going to talk about this new cause of action and the two timing birthmother. So what happened in this case. And this is the case in Virginia that resulted in the new tort of tortious interference with parental relations. So what happens is the birth mom who's young, and her parents tell the attorney that they want an adoption plan, and they want a place in a state that makes it hard for the birth father to contest. Meanwhile, the birth mom's two timing the birth father, telling him that she's going to raise the child with him. But maybe they should consider adoption. But no, all parent with you. And so she's talking to him about a parenting plan, but at the same time she's talking to an adoption attorney. Her parents are helping her with that. And they select a Utah agency and a family in Utah based on her attorney's recommendation that Utah law is not as favorable to the birth father. And it will be really hard for him to protect himself. So what happens in the Wyatt versus McDermott case in 2012 is that for the first time, the Supreme Court recognizes this cause of action. What happened in the case was the birth father, who was deprived of the right to parent his son because of the two timing birth mom ends up suing the adoptive parents, the adoption agency in Utah, the adoption agency attorney out in Utah, and also the birth mother's attorney. Interestingly enough, the birth mom did not sue the birth father because the birth father and the birth mother, excuse me, ended up getting back together with the birth father and basically regretting that she had done the adoption. And so after she two timed him and did the adoption plan, she then flipped and tried to help him get the child back. But at that point, the child had already long gone to Utah and the adoption already moved forward in Utah. So what happened was the birth father hired some good personal injury lawyers who sued in federal court, actually. And it included different causes of action, including fraud and conspiracy, but also tortious interference. And then the federal court wasn't really sure if a cause of action for tortious interference with parental relations should be recognized, because it had not been expressly recognized previously in Virginia. So they certified the question over to the Virginia Supreme Court, which did find that there was such a cause of action. So under the facts of the case, it actually was the birth mom who was the most culpable of defrauding the birth father. But like I said, she'd gotten back together with the birth father. And so what this case means is that this cause of action, of tortious interference with parental relations, means that attorneys and adoption agencies and adoptive parents need to be really careful in how a birth parents rights are addressed so as not to be subject to liability. And while other states may not have this specific tort of tortious interference of parental relations, most other states have tortious interference with business expectancy or with contractual relations. So it's going to be really easy for other states to go down this slope and adopt this or adopt this same tort. Also in this case, it took a while for the adoptive parents to realize that their homeowners insurance could pick up the cost of their defense, so it cost them a lot of money in in defense costs before they realized the homeowners might kick in. Case settled for an undisclosed amount, but the case involved a lot of time embroiled in litigation. I actually was hired as an expert witness on behalf of the birth mothers attorney and was involved in that regard. So there were expert witnesses, and so it was a pretty expensive case. And of course, it was very stressful to everybody. And although the birth father had a Virginia court order him to get custody of his child back, that did not happen because like I said, the child had already gone to Utah and the adoption already gone forward in Utah. So again, the cost of defense can be extensive. The stress on the potential adoptive parents can be insurmountable. Attempts at resolution should be implemented as soon as possible, and sometimes the lawyering can get in the way in that John Wyatt versus McDermott case. The case, of course, brought on behalf of John Wyatt, was brought on contingency by personal injury lawyers. And so the only way that they were going to get paid is if they if they won. And they did end up settling for an undisclosed amount with the with those monetary damages that were paid by the attorneys, malpractice coverage and also potentially the adoption agencies coverage as well. So I included a little cartoon here. There's a tortoise that's holding up a gun saying, I wouldn't sign that if I were you. I found this tortoise interference with contract, which I thought was a funny spin on tortious interference. So I've included a couple of other cases out of West Virginia, Alabama and Florida that are similar to the Wyatt case. Just to show you that this tort has expanded to other states and can easily be applied in other states situations. All right, let's move quickly on to the incarcerated birth parent situation. You do have to be aware that some states, like Virginia, do have added protections for incarcerated birth parents. So a birth parent that's incarcerated in Virginia under a felony is, is deemed to be a person under a disability entitled to having a guardian ad litem appointed to them or for them. So if somebody is doing, say, a relative adoption out of New York and they just send a notice under New York law to an incarcerated birth parent in Virginia, there's the question of whether that was proper notice, because Virginia actually requires that incarcerated birth parent to have a guardian ad litem appointed. So if you are sending notice to somebody in another state, as I mentioned before, you do want to always err on the side of caution and find out what does that state law require? Another caveat is that some states, like Virginia, require a birth parent to have separate legal representation and sign an express waiver of Virginia law if they're waiving the law of their own home state and signing a consent or entrustment to another state. And so if somebody just simply from another state, let's say Ohio sends a consent to a birth mom in Virginia and says, hey, sign this consent, that consent will not be valid unless she has her own separate legal representation and signs a very express waiver of Virginia law. And that our statute requires specifically that my phone, my name, my address, etcetera, that it be signed under oath. So there very specific requirements. And you always want to check the law of another state. Otherwise you may have a serious deficiency in the procedures of the adoption, subjecting you to potential legal malpractice. All right. We're going to talk real quickly about Icwa Indian Child Welfare Act. This outline is way too brief to do any true justice to Icwa. This is a very complicated area of the law, but in many situations, you might have an issue about whether a biological parent is a member of a federally recognized Indian tribe, and if the biological parent is a member of an Indian tribe, then typically that child is going to also qualify as an Indian child. And if the biological parent notifies the tribe and enrolls their child in the tribe as an Indian child, then it is going to definitely apply to those proceedings. And Icwa gives expanded rights to folks to situations where there is an Indian child. And in cases, a proper consent needs to be obtained, meaning that it has to be signed before a judge and only after the child is ten days old. And then also there are expanded rights in terms of revoking of the child's an Indian child. Then either birth parent has up until the final order of adoption or until their rights are terminated to revoke their consent. So if you have an equal situation, you do typically want to associate an experienced lawyer. Sometimes a tribe might actually intervene in the proceedings. So what typically happens in these cases is you want to first find out what is the national origin heritage of the of the biological parents. Sometimes placing parents going to romanticize the fact that, oh, somebody in their family says they have Cherokee Indian and it could just be a rumor. But we want to actually trace is there a grandparent that was a member of the tribe? Was there a parent that was a is one of those biological parents a member of the tribe? We want to then check and make sure. Or is that tribe on the National Federal Register? Or if you're in a state that might have a mini Icwa, then there might be a state equivalent of Icwa that might apply. So in in most cases where it's a voluntary placement, notice is not required. But sometimes notice might be given to the tribe by an objecting birth parent. And in some cases the tribe might intervene. So it's critical to understand Icwa and its procedures and its defenses immediately. In some cases, the tribe may not have standing. So I had a case where my the placing mother had contacted an agency to place the child. The child was placed with my clients, the adoptive parents, the agency notified the tribe that the placing mother said she had tried to belong to, and the tribe intervened. First of all, the first mistake made in that case was that the agency never should have notified the tribe that it was a voluntary placement, and they should have gotten permission from the birth mother to to notify the tribe. But the second thing was that the birth mother actually had applied to become a member of the tribe twice, especially because she won the casino benefits and because everybody that was a member of the tribe would get a, you know, a payment like every six months from the casino royalties. And but she had been rejected twice when she had applied. And so she was pretty ticked off when the tribe showed up at her adoption consent hearing. And what happened in that case? We argued that the tribe had no standing because she had been rejected, and we had the actual rejection letters where she been rejected from membership twice. So we had actually prepared a motion to dismiss in a brief, and the court went ahead and politely asked the tribal lawyer and tribal representative to leave, because clearly the child was not an Indian child, because the placing mother had been rejected twice to be a member of the tribe. You should be familiar if you get into any cases with the case of baby Veronica. In that case, the birth father used his tribal status under Icwa. That case went up to the United States Supreme Court, which eventually found that Icwa did not bar termination of his rights, but it involved the unfortunate bouncing back and forth of that little girl up until she was age four, first spending time in the adoptive parents home, then in her biological father's home, then back into the adoptive parents home. So when she did turn four, she finally was sent back. To the adoptive parents in that case. All right. And there's some more information there about the Baby Veronica case, if you're interested in viewing it. A couple of slides that talk about how that case went. But the bottom line is that it was at an enormous cost to everyone going up to the United States Supreme Court, to Scotus and this poor little girl. I've got a picture of her there. Um, you know, she basically spent all this time with adoptive parents, and then I think a year and a half with the birth father and then back to the adoptive parents. And of course, you can imagine the stress on the poor little girl, but also the stress on the adoptive parents, the stress on the biological father, and this bouncing back and forth. And so thus ended a four year legal battle at great emotional and legal cost. And I love this quote. The cost financially is great, but the emotional cost is even greater. Also be aware of the BIA Bureau of Indian Affairs guidelines. There have been numerous lawsuits filed challenging these guidelines, but a lot of courts are familiar with them. And if you do get involved in a case, I have had some judges that get really curious about the BIA guidelines. I had an adoption case where the I was representing the adoptive parents, and the birth mother simply said that she thought she was a member of a particular tribe, and we had to go to great lengths to establish that she was not. But the judge got really engaged with the BIA guidelines and was very concerned that we definitively determined that was not going to apply to that case. All right, let's move on to the cases where placing a parent might have mental health or drug or alcohol issues. We have to if we know that that's the situation in some cases. I've had not just a lawyer representing the birth mother, but I've asked the court to appoint a guardian ad litem as well for the birth mother. So and then we also want to always obtain an affidavit or testimony from a treating physician or psychiatrist or evaluator that says that despite her drug or alcohol or her mental health issues, that she does have the capacity to consent to the adoption. So we do want to make sure we paper our file and that we don't have a situation where six months down the road, the placing mom is going to say, you know, hey, I was under active treatment for drug or alcohol use or whatever. And I, you know, I didn't I wasn't in my right mind and you knew that I was using and yet you went ahead and you you had the court take my consent, even though you knew that I was high as a kite. So we just want to make sure that we protect ourselves in that regard. Also, if the placing parent is has manic depression, schizophrenia, anything like that? And not only do you want to make sure that the full medical disclosure is made to the adoptive parents, but also that we get something from a psychiatrist, an expert that says that person has the capacity to sign this consent. All right, so I'm going back to another fraud case. This is the Woodford versus Children's Home Society case. In this case, the Woodford adopted a baby boy through the Children's Home Society. And they later discovered that the child had fetal alcohol syndrome. And then I've got a cute cartoon there about the doctors. Saying, of course you feel unwell, you have too much blood in your alcohol stream. But we do want to be aware of cases like the Wolford case, which came out of West Virginia. In that case, the court denied summary judgment on the wrongful adoption and other tort claims. Meaning that he recognized those claims as permissible causes of causes of action in West Virginia. The court declined to recognize the breach of contract claim, but did recognize the other claims for the failure to disclose the birth mothers alcohol use. So we do want to make sure that any alcohol use, et cetera that we can discern, may have occurred during the pregnancy or drug use that that is disclosed. All right. Let's talk about the objecting or intervening grandparent. This can happen. I actually had a case where both the placing mom and dad were young, and they both wanted to go off to college. They did not want to parent the child that they were having together. We brought them to had the baby went to the consent hearing, and then both sets of their parents showed up at the hearing, which was extremely upsetting to the boyfriend and girlfriend. They did not want their parents involved. They did not want their parents to try to convince them to keep the child within their families. We actually had to go back and approach the judge back in chambers and ask the court to reschedule the consent hearing at a time when these grandparents would not know about the hearing, so that this young couple could come back before the court without interference by their parents, and go ahead and proceed to do their adoption plan, which they have every right to do under the Troxel versus Granville Scotus ruling. Their grandparent interference is, you know, is not going to be recognized. These biological parents, they have the primary right to either parent or to do an adoption plan. So in this case that I'm going to tell you about next, I had a birth parent who wanted to consent, said he would consent and his birth parents did not know about the child. He was provided with the consent paperwork, but he refused to sign it and because he wouldn't sign it, the proper legal notice was sent to him as his last known address. Little did we realize that he lived with his mom and dad, and so now his mom files an intervention in the adoption and files for custody, and she also convinces the birth father to object to the adoption. So how could we have avoided that situation? Well, we could have. I could have worked harder with the birth father to get the consent paperwork signed before having to send him the actual legal notice paperwork. I may have been able to look at alternative addresses for sending the paperwork to him, possibly a work address, and maybe possibly having better communication with him about how the notice paperwork would be sent. This type of situation also can happen if you send legal paperwork to a last known address, and if the birth father lives with with a wife and he's parents had sired a child with another woman, it can be a pretty explosive situation. So always just kind of getting a little more Intel on who the birth father lives with is pretty important. So in doing your due diligence, you do want to find out from both placing parents who knows and does not know about their adoption plan. Do they have parents that if they knew about this, would they not support the adoption plan? If the if their parents knew about the adoption plan, would they try to fight it from happening? We do want to probe more into that situation, especially with regard to intervening grandparents. Um, and the grandparents typically do have standing to intervene. But the birth parents have an overriding constitutional right to place. And another case on point would be the Lehrer versus Robertson case. I mentioned the Troxel versus Granville case. That's also relevant. But the layer versus Robertson case is right on point with regard to the the primacy of the birth parents to to make whatever decisions they would like to make with regard to their children. And I do have a cute little cartoon in there. It says grandma's house kids spoiled while you wait. It can be really difficult in these cases for a grandparent to see their grandchild placed into adoption, and that's sometimes where a post adoption continued contact agreement might be really helpful. If that grandparent knows that they can have some sort of continued contact. I had a really great case where we had a wonderful post adoption continued contact agreement. The grandparents sent handmade gifts, including crocheted baby blankets and all sorts of things, and they developed a really great relationship with the adoptive parents. While the biological parents who placed the child really did not want to have anything to do with the child, or really have much continued contact with the adoptive parents. Under the ongoing contact agreement, the grandparents were allowed to still experience basically being grandparents for the child, with the child still being placed for adoption, but they were able to still have that contact and still feel, and they actually did visits with each other. It turned out to be a lovely case. So we do want to just be mindful of how those grandparents might feel. And is there some workaround type solution that we can work with? All right, moving right along. Let's talk about birth fathers in the military. This is really critical. Not again. When we talk about sending notices to incarcerated birth fathers, when we talk about sending notices to addresses that we know are not good addresses. We also want to be aware of sending notices to birth fathers who have been deployed, or who potentially could be in active military. And you want to understand the Service Members Civil Relief Act because it does not just apply to Army, Navy, Marines. It also or Air force. It also applies to Coast Guard. It applies to National Guard members. It applies to commission members of the Public Health Service and the National Oceanic and Atmospheric Administration. So you do want to be very careful because you cannot proceed against somebody that is covered under the scra that is on active duty. So do you want to find out more information about that potential biological father? And could they potentially be in a deployment or active duty situation? So the Scra does provide special protections for service members covered by the act. The whole idea is that if they're on active duty and they're working on behalf of our country, they're not in a position to protect their interests. And so we want to adhere to the procedural safeguards of the act, respect the fact that they are on active duty and not try to proceed with an action against them, especially something as big as potentially terminating their their parental rights to a child that they've sired. All right. So when we talk about just objecting birth parents, generally the most common situation is where one parent wants to place the child and the other one does not. And these situations vary greatly depending on applicable state and federal law. I've included in there for you the Virginia eight factor test for determining when a birth parent is objecting, contrary to the child's best interest. And I've got our statute there just so you can see, for example, what that looks like. Other states have similar statutes. Our statute in Virginia was actually challenged as unconstitutional in a case that went up to our Virginia Supreme Court, Copeland versus Todd, but that was upheld. And that case provides a really good overview or analysis of a parent's fundamental right to parent versus finding that they're objecting contrary to a child's best interest in those cases. If you do have a objecting birth parent case, you do want to research your own state law, but also be aware of the lay versus Robertson decision and take a look at the Copeland case. It's a good case in that regard. You have a case recently where it was a contested adoption case. The birth father was objecting to the adoption, and the judge strongly criticized the adoption agency's limited attempts to provide that birth father with adoption options counseling. They said that if the birth father had been given better counseling, then he would have been able to better determine whether he wanted to parent or whether he wanted. He was willing to agree to the adoption. And so we do want to again, come back to that adoption option counseling piece. We do want to try to encourage folks to have that sort of counseling so that you can really think through their adoption decision. So when we are looking at information to obtain in a contested adoption case that either might assist in case resolution or might factor into whether your adoptive parents want to go forward with the contested adoption. So these are all things that we try to look for and find more on. We want to look at the past and current criminal record, driving records, employment records. We want to look at drug and alcohol use, mental health issues and treatment. Age. If the objecting birth parents only 16 years old, that's going to be a much greater factor in whether they can parent versus an objecting birth parent that's 35 years old. What's the relationship they've had with the child and with any other children? What's their ability to hold a job? What's their financial condition? How much support did they provide during the pregnancy or have they provided to the birth mom? We also want to look at are there any Child Protective Service charges, whether the child was conceived due to rape or statutory rape or sexual assault? What's the level of family support or support by others? What's the level of education and training of the person? Do they have any physical or mental disabilities? What are their efforts to make contact with the child? Sincerity of interest in parenting, smoking, drug alcohol use around the child and their overall ability to parent. Unfortunately, Delay does tend to work in the favor of the party that has the interim custody of the child due to the attachment bond growing or forming. So in these cases, sometimes if the child is with the adoptive parents, that can garner in the favor of the adoptive parents because the objecting birth parent doesn't have that opportunity to bond. So if that objecting birth parent does get some sort of visitation, then that will help them out. But if they don't have the opportunity to bond with the child, that can be a disadvantage. And that's what happened in the the very case that I mentioned where my client, John Barry, had not gotten a notice, um, the the appellate rulings and the case took so long that it was almost two years before it was ruled that, that he should have been involved in the adoption proceedings. And at that point, he had been two years out of the child's life. And so it can really work to an extreme disadvantage if the case goes on and on and on, and a lot of the cases are decided by judges rather than juries, and the judge's own personal views and paradigm can be a determinative factor. So you want to research the judge, and the greater the evidence that needs to be presented, than typically the further back the trial date and then the further back the trial date, the party that has the actual custody of the child again is at an advantage. We talked about the enormous costs, emotional stress, financial costs, and as advocates, we really should try to do whatever we can to prevent these, you know, expensive, litigious, stressful events. So we do want to think about ongoing contact agreements as a tool for mediation and settlement. And we do want to make sure that in situations where the birth father has not been involved, may not have even known about the pregnancy, was not part of the adoption plan. A lot of times they might be objecting simply because they got left out, and now allowing them to become engaged, allowing them to meet the adoptive parents. Proposing a potential ongoing contact agreement can be a really good settlement tool. Let's just talk real quickly as we start to close out our time together about breaches of fiduciary duty. Just recognized that as an attorney, of course, you have a fiduciary duty when you're administering client funds. I've got a cute little cartoon there about inventory software keeping track on the wall. We do want to make sure that we make sure that if we are handling any trust funds, such as for living expenses for a placing parent, we want to make sure that we make it clear in our retainer agreement that that will be placed in a separate account, and we want to make sure that our accounting is really good with regard to the handling of any such funds. We also want to make sure in all of our agency agreements that the adoptive parents and placing parents are entitled to their own counsel. When I'm representing a placing parent, I have the placing parent sign and the agreement with me. But I also have the adoptive parents who are paying my bill sign a separate fee agreement saying that yes, they are paying my bill, but I don't represent them. And I have the birth mom and her fee agreement say she recognizes that the adoptive parents are paying my bill, but that my duty is as to her, I'm her fiduciary and not that of the adoptive parents. So we do want to make sure that we protect ourselves with regard to our fiduciary duties. And then finally do be aware of situations if there is a language barrier. So in this EV versus GFM case, what happened very briefly in this case is that the father, mother and the child all were in a car accident. The mother was killed. The father needed a lot of help. Um, his mother stepped in to help care for the child. He did not speak English. His mother, the grandmother, had him sign an adoption consent without him knowing. And three years later, after he had recovered and remarried, he requested his child back from his own mother, and she refused. And at that point he challenged the adoption. And in Virginia, even though we have a statute that says you can't challenge any adoption after six years, excuse me, six months after the final order is entered, the court still allowed him to go forward because the fraud was so bad in this case, where the father's own mother had given him an adoption consent and told him that it was just a document to have allow her to get medical attention to the child. And she just flat out lied that he was signing an adoption consent and that she was going forward with an adoption. So in that case, the court found our six month statute was unconstitutional when applied to the facts of that case. So what we learned from that case is you want to make sure that everything any consent you have, anyone sign is either translated or you have a translator available and then you document the fact it was translated. And I've got a sample interpreter certification there for you. All right. I've got some additional materials on special conflicts of interest where if you are the representative of an agency, an adoption agency or adoption entity, then you need to really watch out for conflict of interest issues, because, for example, I'll give you a real quick example. I do a lot of Jewish Family Services terminations, and I also am their agency of counsel attorney. I'm not I'm not an employee of theirs, but they turn to me when they need guidance or counsel. So if I have a adoption where Jewish Family Services has done an agency adoption, and I've done the termination paperwork on the birth parents, and then the adoptive parents turn around and say, hey, they want to hire me to, to to finalize their adoption. I need to make sure that I have waiver forms from both the agency, Jewish Family Services, and also the adoptive parents. I need to explain to the adoptive parents, hey, I was the attorney in the underlying agency adoption. If I screwed that up in any way, I'm now representing you and you won't be able to come after me. So we do want to recognize these special conflict of interest situations and just recognize we owe all of our clients a duty of loyalty. So if I'm representing the agency and the adoptive parents at the same time, I need to be really careful about whether one I can even be involved in that situation and and represent everyone, or if I determine that I can be involved. And I want to make sure I have clear disclaimer and waiver and consent forms from everybody. And so finally, let's just close out with legal malpractice scenarios. It's really, really careful to all your I's and cross all your T's in this area of adoption law. It's pretty easy to get in trouble. And I've been hired as an expert witness in legal malpractice cases. I had one case where the attorney let the placing mother sign an out-of-court consent before a notary, and our state requires that she sign before a judge that she sign a judicial consent. And in that case, the birth mom challenged the adoption. The adoption was undone because of the procedural irregularity of her not signing before a judge, and the adoptive parents had to return the child to the biological mother after the child had been in their home for two years, and they thought their attorney had handled the case properly. So it's imperative to return to refer adoptive parents to qualified and experienced adoption attorneys. If this is an area you're just starting to go into, then typically it makes sense to co counsel with an experienced lawyer. Or I've even had folks hire me just for an hour or to give them advice. I've had other lawyers hire me just to help guide them and teach them through the process. So just recognize that we are dealing with the potential of somebody bonding with a child, and not just monetary damages, but somebody bonding with a child and then thinking their adoption has been done properly, and then having to return that child to a biological parent can be just devastating. And these cases can arise if you fail to comply with Icwa. If you fail to comply with the Interstate Compact on the placement of children. If you fail to follow the express procedural requirements. If you give faulty notice to a guy that's incarcerated or an active duty military. And there are a couple of cases where I've included bar grievances that were filed by state bar grievances. The Florida bar versus dub case out of Florida is an important case for you to review and be familiar with, and I've got that all outlined there. I'm not going to read it to you or go into more detail, but also the Kriegel case out of Missouri. In that case, the lawyer got into trouble as well. So these are really good cases to to read and become familiar with, where both of those lawyers in the Kriegel case and the dove case got into some deep doo doo with their respective state bars for for the activity that they engaged in. In the Kriegel case, he got pretty lucky because he was just suspended for the practice of law for six months, and three justices dissented, saying the behavior was so bad he should have been disbarred. So as we close out, I do want to say the final reflection is to protect the integrity of the adoption. Just remember that in these cases, it's not just a matter of making sure we dot the I's and cross the T's, but it's a matter of making sure we secure the the legality of these children and make sure that they are legally secure in the adoptive home. So thank you very much for spending this time with me. And thank you for hosting me today. And hopefully you learned something about avoiding a contested adoption and attorney liability.

Presenter(s)

CQJ
Colleen Quinn, JD
Owner
Quinn Law Centers

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                                                                                                                                    • 1.0 ethics
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                                                                                                                                    November 1, 2024 at 11:59PM HST

                                                                                                                                    Status
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                                                                                                                                      Available until
                                                                                                                                      Status
                                                                                                                                      Pending
                                                                                                                                      Credits
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                                                                                                                                        Status
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                                                                                                                                        Credits
                                                                                                                                        • 1.0 ethics
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                                                                                                                                        November 2, 2025 at 11:59PM HST

                                                                                                                                        Status
                                                                                                                                        Approved
                                                                                                                                        Credits
                                                                                                                                          Available until
                                                                                                                                          Status
                                                                                                                                          Not Eligible
                                                                                                                                          Credits
                                                                                                                                          • 1.0 ethics
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                                                                                                                                          November 2, 2025 at 11:59PM HST

                                                                                                                                          Status
                                                                                                                                          Approved
                                                                                                                                          Credits
                                                                                                                                            Available until
                                                                                                                                            Status
                                                                                                                                            Pending
                                                                                                                                            Credits
                                                                                                                                              Available until
                                                                                                                                              Status
                                                                                                                                              Not Eligible
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                                                                                                                                                Status
                                                                                                                                                Not Eligible
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