August 10, 2008

Return to Sender

Return to sender
© Photographer: | Agency:

Here's a LONG Federal Supreme Court judgement regarding a family who SUED an adoption "entity" for fraud, after the child they adopted was found to NOT be the age they originally were told...therefore, they SENT HER BACK, for "re-adoption" (whatever that means)...they lost their case. But this is just a prime example of unregulated, mish-mash adoption laws in America which completely FAIL to protect the children involved...

In January 1995, the Regensburgers engaged the services of CAC. The Regensburgers explained that they wished to adopt a healthy two to two and a half year old from China. The Regensburgers had lost their second child to Sudden Infant Death Syndrome, and they were hoping to adopt a child who would be approximately the same age as their second child would have been. At that time Kenneth Lubowich advised the Regensburgers about the services CAC would provide and the steps necessary to complete an adoption of a child from China. Lubowich made certain oral representations to the Regensburgers. He assured the Regensburgers that he had special expertise with Chinese adoptions, that they would get the child they wanted, and that he had connections with the Director of the China Adoption Center ("the Center"). The Regensburgers relied on these representations.

In September 1995, the Center forwarded a referral of a three year old girl, Yang Chun Hua ("Yang") for potential adoption by the Regensburgers. The referral consisted of a medical report and a picture of the child. Lubowich forwarded these documents, along with a formal Consulting Agreement ("Agreement") to the Regensburgers.

Lubowich advised the Regensburgers that they had the right to refuse the referral, but that if they did so, he was unsure when the next child would become available. The Regensburgers accepted the referral and signed the Agreement with CAC.

On September 11, 1995, the Regensburgers used CAC's travel services to arrange a trip to China. On September 14, 1995, the Regensburgers went to China to adopt Yang. While they were in China, Lubowich's agent assisted the Regensburgers. The Regensburgers met Yang, and on September 20, 1995, they made a videotape of the orphanage director verifying Yang's birth date. On September 25, 1995, the Regensburgers called the orphanage to again confirm Yang's birth date. At any time, the Regensburgers could have refused the referral, but instead they formally adopted Yang. On September 28, 1995, the Regensburgers returned to the United States with their newly adopted daughter.

Between September and November 1995, the Regensburgers wrote and called many friends and colleagues, including Lubowich, to express their happiness with their adopted daughter. However, in November 1995, after taking Yang to several doctors, the Regensburgers learned that she was not three years old but was in fact between six and eight years old and mentally and physically delayed. The Regensburgers placed Yang for readoption in February 1996.II. ANALYSIS

CAC and the Lubowiches argue that they did not breach the terms of the Agreement because the Regensburgers, according to the terms of the Agreement, assumed the risk and waived liability for damages arising out of the adoption. The relevant contractual provisions read as follows:

[The Regensburgers] acknowledge and understand that there will be limited information or no information available concerning a child's history and Consultant makes no representations with regard to the accuracy of any information contained in the files of children identified by Chinese authorities; accordingly, the [Regensburgers] will decide the selection of their child based on limited information and [the Regensburgers] assume[ ] all risks attendant to proceeding on this basis.

[The Regensburgers] agree and acknowledge that the adoption process is subject to great risk considering the human and emotional and subjective factors which are present, and there can be no assurances of any kind, nature, or description concerning the outcome of an adoption, including, but not limited to, the child's health, intelligence, or other attributes which would be critical to [the Regensburgers].

In view of the aforesaid considerations, [the Regensburgers] hereby voluntarily, irrevocably and unconditionally release and forever discharge Consultant, its officers, directors, agents and associates from any and all claims, demands, causes of action, damages, judgments, decrees, costs, attorneys' fees, expenses or other liability arising directly or indirectly out of any alleged or actual breach of the representations, covenants and obligations of Consultant, its officers, directors, agents and associates as set forth in this Agreement or arising out of the relationship between Consultant and: (i) [the Regensburgers]; (ii) Agency; (iii) [the Regensburgers] and Agency.

The Regensburgers' arguments that the Agreement is void are similarly unavailing. First they argue that the Agreement is illusory. We take this to mean that CAC's promise of performance was illusory, and therefore the Agreement is void. An illusory promise is not sufficient consideration to support a contract.

"An illusory promise appears to be a promise, but on closer examination reveals that the promisor has not promised to do anything.... An illusory promise is also defined as one in which the performance is optional."

We find no illusory promises in the Agreement between CAC and the Regensburgers.

Next the Regensburgers argue that they were fraudulently induced to sign the Agreement by Lubowich's assertions that they would receive the child they wanted. Fraudulent inducement may invalidate a contract.

"In order to constitute fraud in the inducement, the defendant must have made a false representation of a material fact knowing or believing it to be false and doing it for the purpose of inducing the plaintiff to act. The plaintiff must also show his reasonable belief in and reliance on the statement to his detriment."

The Regensburgers fail under this burden. A party who could have discovered the fraud by reading the contract, and in fact had an opportunity to do so, cannot later be heard to complain that the contractual terms bind her.

One is under a duty to learn, or know, the contents of a written contract before he signs it, and is under a duty to determine the obligations which he undertakes by the execution of a written agreement.... And the law is that a party who signs an instrument relying upon representations as to its contents when he has had an opportunity to ascertain the truth by reading the instrument and has not availed himself of the opportunity, cannot be heard to say that he was deceived by misrepresentations.

The Regensburgers' final attempt to avoid the contractual language is to allege that the Agreement violates the Adoption Act. The Adoption Act provides:

No person and no agency ... except a child welfare agency as defined by the Child Care Act of 1969, as now or hereafter amended ... shall request, receive or accept any compensation or thing of value, directly or indirectly, for placing out of a child.

We find no evidence that CAC was engaged in "placing out" children. The Agreement specifically states that CAC is not a placement or adoption agency, and even requires the prospective parents to engage the services of an adoption agency. The Adoption Act was meant to "prevent profiteering in the placement of children and to eliminate so-called 'baby markets' and 'baby brokers.' "

CAC offers support and travel services for persons wishing to adopt children from China, but CAC does not act as the adoption agency for those children. While it is true that Schwartz states that "[a]ll others [than child welfare agencies] are prohibited from acting as paid intermediaries in the adoption process," the kind of service CAC provided does not fall within this meaning of "paid intermediary."

Based on the Schwartz court's interpretation of legislative intent, the Illinois legislature was targeting "baby brokers"--those persons who would claim they could secure a child from a family, or that they could find adoptive parents for a child, for a cost. Clearly that is not the kind of service CAC provided.

The Regensburgers paid only $500 for CAC's consulting services. The remainder of the monies paid to CAC was for travel arrangements and travel expenses; they paid no money for placement. This is a far cry from the "baby brokering" the Act was intended to target. The Agreement, therefore, does not violate the Adoption Act.

The Regensburgers' attempts to extricate themselves from the contractual language are unpersuasive. Thus the contractual provisions govern, and the Regensburgers cannot succeed on a claim for breach of contract.

We have held that the contractual provisions apply and therefore the Regensburgers have relinquished their right to sue CAC and the Lubowiches. Because we find the Regensburgers' arguments unpersuasive, we AFFIRM the award of summary judgment on all claims in favor of CAC and the Lubowiches. We Deny the motion for sanctions under Fed.R.App.P. 38

1 comment:

Anonymous said...

You have to reread this case as you have completely misread it. It has nothing to do with laws failing to protect children. It has to do with anybody can bring a case to court about anything no matter how little merit is has.

This case in not from the “Federal Supreme Court” but a Federal Court of Appeals which found so little merit in the case that they, like the lower court before them, would not even hear the case. EVEN IF (emphasis added to note that this is just the plaintiffs side of the story) what they said was true they did not have a case.

The real question is what kind of people would adopt a child but then abandon her (the second time in this young child’s life) because a doctor had an opinion that she MIGHT be slightly older than they were told by the orphanage.

I do know this case and eventually the child was adopted by a family that loved her dearly and was at the time (a long time ago) doing fine in school in a regular age appropriate class.