Mayer v. Madison Adoption Assocs.

ORDER

Brian Morris, Chief District Judge

INTRODUCTION

Plaintiff Kristin Mayer, as conservator for Dexxon Butler, filed this negligence action against Defendant Madison Adoption Associates, Ltd. (“Madison”). Docs. 1, 13. Madison filed a motion to dismiss the first amended complaint for lack of jurisdiction and failure to state a claim. Doc. 16. The Court held a hearing on the motion to dismiss on September 14, 2021. Doc. 23.

BACKGROUND

Dexxon Butler (“Dexxon”) was born in China in 2002. Dexxon's parents abandoned him as an infant and the Chinese government assumed his care.

Dr. Patrick and Tari Butler (“Butlers”) of Illinois adopted Dexxon in 2015. Butlers contracted with Madison to serve as their adoption agency. Madison is a Delaware, not-for-profit corporation that specializes in intercountry adoption. Madison's agreement with Butlers required Madison to assist Butlers with the adoption process, including participation in the preparation of China-mandated post-adoption reports. Madison has an office in Illinois that prepared the post-adoption reports for Dexxon.

Chinese law requires post-adoption reports to the Chinese government. The United States requires adoptive parents comply with all post-adoption reporting requirements of foreign nations. 22 C.F.R. § 96.51(c). When post-adoption reports are required, they must be provided for in the adoption services contract. Id. China requires reports at 6 months, 1 year, 2 years, 3 years, 4 years, and 5 years post-adoption. Doc. 6 at 4. The initial adoption agreement between Madison and the Butlers required Madison to complete the first three post-adoption reports to China. Madison would provide, in fact, all of the reports. Doc. 19 at 13-14.

Only three months after Dexxon arrived in Indiana, Butlers determined that caring for Dexxon was too substantial of a burden. Butlers sent Dexxon to a youth group home in Idaho. Dexxon spent five months at the Idaho group home before the group home notified Butlers that it would not be able to continue caring for Dexxon.

Madison “worked diligently” to assist Butlers in selecting a new residential facility for Dexxon. Doc. 17 at 3. “With the assistance of Madison, ” Butlers chose the Ranch for Kids in Lincoln County, Montana. Doc 19-1 at 3. Madison described the Ranch for Kids as “a compassionate treatment program for children” and “a bridge of hope and healing for hurting families.” Id. Madison's 1-year report to the Chinese government, concluded that Madison helped “determine the best placement for Dexxon” and that Ranch for Kids “has a highly trained staff” which is “committed to providing a safe environment for Dexxon.” Id. at 5.

Plaintiff alleges that Ranch for Kids was not the godsend for Dexxon that Madison portrayed in its reports to China. Ranch for Kids physically and emotionally tortured the children in its care. Dexxon was allegedly not spared the abuse. Ranch for Kids staff allegedly strangled Dexxon to unconsciousness, psychologically abused him, withheld food and medical treatment, and provided minimal education.

During Dexxon's four years at Ranch for Kids, Madison remained in electronic contact with the Ranch for Kids staff. Madison claimed to receive weekly reports regarding Dexxon's health from Ranch for Kids and reported social improvement and good health to the Chinese government. Madison's employees never personally observed Dexxon's health and never travelled to Montana. Madison completed “home visits” for Dexxon every year, as required by Chinese

reporting requirements, by meeting with Butlers in Illinois, despite noting that Butlers were not in more than “minimal” contact with Dexxon. See Doc. 19-4 at 3.

Dexxon was rescued from Ranch for Kids as part of a police raid in July of 2019. Butlers refused to allow Dexxon to return to their home and so Dexxon became a ward of Montana. Dexxon currently lives in a group home in Great Falls, Montana.

ANALYSIS

I. Motion to Dismiss Under Rule 12(b)(6).

Madison argues that it owed no legal duty to Dexxon and that it was not required to conduct a firsthand investigation of Dexxon's health and wellbeing. Doc. 17 at 21-27. Absent a legal duty to Dexxon, Madison contends that Plaintiff's complaint for negligence against it fails to state a claim upon which relief may be granted. Plaintiff alleges that Madison owed Dexxon both a statutory and common law duty to adequately investigate and accurately report Dexxon's health and wellbeing. Doc. 19 at 16-25.

The existence of a legal duty presents a question of law to be determined by the court. Fisher v. Swift Transp. Co., 181 P.3d 601, 607 (Mont. 2008). In a negligence action, a duty may arise from a statutorily imposed obligation. Prindel v. Ravalli Cnty., 133 P.3d 165, 175 (Mont. 2006); Jackson v. State, 956 P.2d 35, 49 (Mont. 1998). The common law may also provide a remedy when a duty imposed by applicable statute is manifestly intended for the benefit and protection of

individuals. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 374 (1982) (citing Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33 (1916)).

Federal law requires that adoption agencies comply with the post-adoption reporting requirements of a child's country of origin. 22 C.F.R. § 96.51(c). The China Center for Children's Welfare and Adoption (“CCCWA”) is the central Chinese authority for the purposes of the Hague Adoption Convention. The CCCWA requires that foreign adoption organizations adopting children in China comply with the CCCWA's Regulations and Requirements for Foreign Adoption Organizations doing Adoption with China. Doc. 19-5. CCCWA regulations require that post-adoption reports be “real, specific and comprehensive. The social worker should prepare the report based on the actual visits, recording faithfully what he or she sees and hears in the family and reflecting objectively the changes of the adoptive family after the adoption and the life and growth of the adopted child.” Doc 19-5 at 15 (emphasis added).

CCCWA regulations establish an obligation for adoption agencies to visit, observe, and report truthfully on the “life and growth” of the adopted child. Id. Adoption agencies that conduct business with China must provide post-adoption reports in accordance with CCCWA regulations. See 22 C.F.R. § 96.51(c). Those obligations create a statutory duty. To the extent that Madison failed to “actual[ly] visit” Dexxon, provide “real” reports, or record faithfully what Madison social

workers “see and hear, ” Madison breached that statutory duty. Plaintiff alleges that Madison failed to accurately report and investigate Dexxon's health and wellbeing. Among those allegations, Plaintiff claims that Madison never conducted a firsthand visit with Dexxon after Dexxon left Butlers' home in Illinois. Plaintiff alleges sufficient facts, taken as true, to establish a potential breach of the statutory duty Madison owed to Dexxon. See Doc. 13 at 7-8.

Montana law also supports a common law duty owed by adoption agencies, in the course of their obligations, to act reasonably to observe and protect the health of the adopted child. Montana's fundamental principal of tort law is clear:

where a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of negligent failure so to perform it.

Stewart v. Standard Publ'g Co., 55 P.2d 694, 696 (Mont. 1936).

An adoption agency plays a unique and fundamental role in the life of an adopted child. The adoption agency may, at times, be the primary caregiver or overseer of the child's health and safety. Adoption agencies connect all parties involved in the adoption process and may determine or play a role in determining where and how a child lives. Particularly in the case of international adoption, the child may be reliant on the adoption agency to observe the child's mental wellbeing. In that instance, the adoption agency may furnish the adopted child's only contact

capable of speaking with the child in their native language.

Where an adoption agency undertakes a role in an adopted child's life- whether required by statute, contract, as a necessity of the adoption process, or voluntarily-an obligation arises. Madison argues that no common law duty should exist here, but to relieve an adoption agency of the duty to act without negligence toward a child in its care would relieve adoption agencies of the same level of care expected from any person. Fisher, 181 P.3d at 606 (“At the most basic level, we all share the common law duty to exercise the level of care that a reasonable and prudent person would under the same circumstances.”). When one willingly accepts a responsibility toward another Montana law expects that the actor will act as a reasonable and prudent person would in the commission of that responsibility. See Id. at 609. Madison was allegedly acting as the overseer of Dexxon's health. To the extent it acted negligently in its oversight of Dexxon, Madison breached its duty of care. See id.

The Montana Supreme Court's prior findings also suggest that a duty between adoption agency and adopted child exists under Montana's common law. Montana law has “long recognized that the common law may impose additional, special duties based upon relationship.” Id. at 606. Montana previously has recognized “a cause of action for negligent misrepresentation in the adoption context” in...