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Adopting Civil Damages: Wrongful Family Separation in Adoption

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Adopting Civil Damages: Wrongful Family Separation in Adoption Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 3-2019 Adopting Civil Damages: Wrongful Family Separation in Adoption Malinda L. Seymore Texas A&M University School of Law, [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Family Law Commons, and the Torts Commons Recommended Citation Malinda L. Seymore, Adopting Civil Damages: Wrongful Family Separation in Adoption, 76 Wash. & Lee L.R. 895 (2019). Available at: https://scholarship.law.tamu.edu/facscholar/1309 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. Adopting Civil Damages: Wrongful Family Separation in Adoption Malinda L. Seymore* Abstract The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents when consent is invalid because of fraud, coercion, or deceit. In actuality, courts are very reluctant to undo an adoption. How, then, to deter adoption agencies and workers from wrongfully separating birth parents and their children? Adoption agencies are not just social welfare institutions, but also businesses motivated by money. Lawsuits, as a cost of doing business, can affect their bottom line. The adoption industry has been responsive in the past to lawsuits from adoptive parents seeking money damages, which suggests that lawsuits from birth parents that affect the bottom line could incentivize better behavior from adoption agencies. This Article explores possible tort causes of action available to birth parents, including a proposed new tort of wrongful family separation, with the long-term objective of changing adoption agency behavior, potentially transforming adoption practice. * Professor of Law, Texas A&M University School of Law. 895 896 76 WASH. & LEE L. REV. 895 (2019) Table of Contents I. Introduction ...................................................................... 896 II. The Business Model of Adoption ..................................... 903 III. Adoptive Parents Suing Agencies—Wrongful Adoption 911 A. Agencies Mitigating Risk .......................................... 912 B. Adoptive Parents and Assumption of the Risk ........ 914 C. Remedies when Risk was Realized ........................... 918 1. The Courts Respond ............................................. 918 a. Fraud and Deliberate Misrepresentation ....... 919 b.Negligent Misrepresentation ............................ 920 c.Damages ............................................................ 922 2. Legislatures Respond ........................................... 924 D. Agencies Respond to New Legal Risk ....................... 926 IV. Legal Liability for Wrongful Family Separation ............ 928 A. Fraud and Misrepresentation ................................... 929 B. Tortious Interference with Parental Rights ............. 940 C. Intentional/Negligent Infliction of Emotional Distress .................................................... 944 D. Legal Malpractice/Lawyer Misconduct ..................... 949 V. Proposing a New Cause of Action: Wrongful Family Separation ............................................................ 955 VI. Conclusion .......................................................................... 961 I. Introduction #FamiliesBelongTogether —Twitter1 Is this what family is like: the feeling that everyone’s connected, that with one piece missing, the whole thing’s broken? —Trenton Lee Stewart2 1. This is a popular hashtag posted by Twitter users on twitter.com. 2. TRENTON LEE STEWART, THE MYSTERIOUS BENEDICT SOCIETY 255 (2007). ADOPTING CIVIL DAMAGES 897 The Trump Administration’s new policy of family separation of immigrants crossing the U.S./Mexico border rocked the summer of 2018.3 Stories of children held away from their families in cages,4 audio recordings of children screaming as they are dragged away from their parents,5 all serve as the backdrop for a policy deemed by many as cruel and inhumane.6 Yet family separation is the prerequisite to every legal adoption.7 The circumstances are different, of course. In adoption, the biological parents are provided with all the constitutional protections of parenthood required in involuntary termination of parental rights, or they have voluntarily consented to family separation—that, too, is a prerequisite to adoption.8 But what happens when that family 3. See Louise Radnofsky, Natalie Andrews & Farnaz Fassihi, Trump Defends Family-Separation Policy, WALL STREET J., https://www.wsj.com /articles/trump-administration-defends-family-separation-policy-1529341079 (last updated June 18, 2018) (last visited Jan. 10, 2019) (stating that the Trump Administration is blaming Congress for the family separation policy at the border) (on file with the Washington and Lee Law Review). 4. See Nomaan Merchant, Hundreds of Children Wait in Border Patrol Facility in Texas, ASSOCIATED PRESS (June 18, 2018), https://apnews.com/9794de32d39d4c6f89fbefaea3780769/Hundreds-of-children- wait-in-Border-Patrol-facility-in-Texas (last visited Jan. 10, 2019) (on file with the Washington and Lee Law Review). 5. See Ginger Thompson, Listen to Children Who’ve Just Been Separated from Their Parents at the Border, PROPUBLICA (June 18, 2018, 3:51 PM), https://www.propublica.org/article/children-separated-from-parents-border- patrol-cbp-trump-immigration-policy (last visited Jan. 10, 2019) (on file with the Washington and Lee Law Review). 6. See David Adler, Trump’s Family Separation Policy: Cruel, Inhumane, Tragic, IDAHO ST. J. (June 26, 2018), https://idahostatejournal.com/opinion/columns/trump-s-family-separation-policy- cruel-inhumane-tragic/article_1f93cc9b-3918-550c-81b2-0f50ec16d9ab.html (last visited Jan. 10, 2019) (arguing that Trump’s family separation policy is immoral) (on file with the Washington and Lee Law Review); Richard Wolffe, Trump’s Cruel Border Policies Created a Needless Crisis. It’s Far from Over, GUARDIAN (June 20, 2018, 5:25 PM), https://www.theguardian.com/commentisfree/2018/jun/ 20/trumps-cruel-border-policies-created-needless-crisis-far-from-over (last visited Jan. 10, 2019) (arguing that President Trump created the border crisis) (on file with the Washington and Lee Law Review). 7. See Malinda L. Seymore, Sixteen and Pregnant: Minors’ Consent in Abortion and Adoption, 25 YALE J.L. & FEMINISM 99, 148 (2013) (“[For adoption,] a court must first terminate the parental rights of the birth parents before granting parental rights to the adoptive family.” (citing 2 AM. JUR. 2D Adoption § 170 (2013)). 8. See id. (“The Supreme Court has long recognized parental rights as fundamental rights under the Constitution.” (citing Stanley v. Illinois, 405 U.S. 898 76 WASH. & LEE L. REV. 895 (2019) separation is wrongful, when the birth mother’s consent is not voluntary,9 or when the birth father’s wishes to parent are ignored?10 In theory, the child can be returned to the birth parents when consent is invalid because of fraud, coercion, or deceit.11 In actuality, courts are very reluctant to undo an adoption.12 Consider the case of Tammy Lemley in Lemley v. Barr.13 Tammy’s boyfriend convinced her to relinquish their child for adoption, but Tammy was upset and refused to sign the papers at the attorneys’ office.14 He convinced her to return the next day to sign the papers, which she did.15 But she was underage, making her consent void under Ohio law.16 The lawyers told her after she turned eighteen that she needed to sign more papers—actually, she needed to sign papers once she reached majority because the previous papers were void.17 That same day, her parents went to the lawyers to ask for the return of the child and to point out that Tammy’s consent was void because she was underage.18 The lawyers refused, having already delivered the child to a couple in 645, 651 (1972)). 9. See id. (stating that consent must be “freely and willingly” given). 10. See id. (arguing that a minor needs additional protection when signing a consent to adoption). 11. See generally Marywood v. Vela, 53 S.W.3d 684 (Tex. 2001) (holding that the adoption consent was involuntary when the birth mother was promised an open adoption that was not legally enforceable in Texas); Queen v. Goeddertz, 48 S.W.3d 928, 932 (Tex. App. 2001) (holding that the adoption consent was involuntary when the birth father was given an unenforceable promise of continued visitation post-adoption). 12. See infra note 24 and accompanying text (stating that courts are reluctant to undo adoptions because such actions infringe on the adopted child’s rights). 13. 343 S.E.2d 101 (W. Va. 1986). 14. See id. at 102–03 (“Tammy Lemley became upset, refused to sign the papers and left with the child.”). 15. See id. at 103 (stating that the couple later returned and signed the consent papers). 16.
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