Litigating Adoption and Foster Care Cases

Adam Pantano and Scott Fellmeth authored the article “Litigating Adoption and Foster Care Abuse Cases,” which was originally published in the Philadelphia Trial Lawyers Association Verdict Journal, Volume 2022-2023 – Issue 2.

Grace Packer was brutally murdered and dismembered by her adoptive mother, Sara Packer, and Sara Packer’s boyfriend, Jacob Sullivan. Before her death, Grace suffered systematic sexual abuse at the hands of her adoptive father, David Packer, who was later incarcerated for those crimes. Grace lived an unimaginably horrific life. Because the case involved a deceased minor who was in Pennsylvania’s foster and adoption system, to arrive at this settlement, there were numerous difficulties during discovery in obtaining documents critical to the case and keeping in essential allegations of abuse and neglect against the defendants.

Grace’s murder was the subject of national news, specifically the failures of the entities responsible for her protection. Those entities included the three (3) private companies that provided foster, adoption, and behavioral health services to Grace. At the outset of the litigation, there were difficulties with obtaining Grace’s foster and adoption records from not only the non-party CYS (Children & Youth Services) entities, but also the defendants in the case, who asserted that because a courtappointed administrator was named as the Plaintiff, we were not entitled to receive any records related to child abuse involving Grace. The defendants and nonparty CYS entities relied on several Pennsylvania statutes for their argument.

First, the parties pointed to Pennsylvania’s Adoption Act (the “Act”),² arguing that because we represented the court-appointed administrator of Grace’s estate, we were not one of the enumerated classes of individuals permitted to access Grace’s adoption records. However, the Act’s stated purpose and intent is for greater post-adoption contact between the adoptee and biological parents, as well as easier access for individuals to obtain information through the Commonwealth’s information registry, the Pennsylvania Adoption Information Registry.³ Indeed, when then Governor Ed Rendell signed the Act into law, he released a statement that provided a description of the Act, stating it “establishes a procedure for voluntary open adoption.” We argued that the Act has no place in civil litigation and could not be used by CYS or defendants as a shield to prevent discovery efforts. In the alternative, we argued that should the Court determine the Act applied to civil litigation, we would still be entitled to Grace’s adoption records as nothing in the Act purports to deny access to the estate of a murdered adoptee from gaining access to the adoptee’s own records. That an adoptee is entitled to basic rights under the Act is beyond question and the fact an adoptee is murdered or dies makes him or her no less an adoptee entitled to the rights under the Act. Our client, the Administrator of Grace’s Estate, stood in Grace’s shoes and the release of Grace’s records to the Administrator would be identical to releasing them to Grace, her legal guardian, and/or descendants. The act of appointing an administrator to an adoptee’s estate does not diminish or erase the adoptee’s rights even though the adoptee is now deceased. The Court agreed with our arguments.

The non-party CYS entities also relied on Pennsylvania’s Child Protective Services Laws (the “CPSL”),⁴ and alleged that reports concerning instances of child abuse in the possession of a county agency were confidential and were only to be made available to a court of competent jurisdiction pursuant to a court order or subpoena in a criminal matter involving a charge of child abuse. However, their argument overlooked the CPSL’s clear exceptions for the release of information in confidential reports, which provides “[u]pon written request, a subject of a report may receive a copy of all information contained in the statewide database or in any report filed pursuant to Section 6313.”⁵ The CPSL defines “subject of the report” as “any Litigating Adoption and Foster Care Abuse Cases Continued from page 1 child, parent, guardian or other person responsible for the welfare of a child or any alleged or actual perpetrator in a report made to the department or a county agency under this chapter.”⁶ Furthermore, information contained in case records shall be released upon request to parents and legal guardians as well as to children’s and parents’ attorneys.⁷ We successfully argued that Plaintiff, as the Administrator of Grace’s Estate, was clearly entitled to Grace’s records.

Another obstacle encountered was obtaining law enforcement’s investigative file related to Grace’s murder. The impediment was Pennsylvania’s Criminal History Record Information Act,⁸ (“CHRIA”), which generally prohibits disclosure of criminal intelligence, investigation, and treatment information to litigants in civil actions. The prohibition of obtaining these documents in litigation can have profound effects, including foreclosing plaintiffs from using evidence that law enforcement agencies are in a unique position to collect based on their power to obtain search warrants. In other words, CHRIA can effectively preclude a party’s ability to prosecute its case. As a work around, to receive all of the investigative materials related to Grace’s murder, we subpoenaed the files from the criminal defense attorneys who are not able to assert CHRIA in response to a subpoena. Because of this, we were able to obtain the complete investigative file of Grace’s murder, which contained critical information to the case.

Finally, because of the egregious conduct by defendants, we sought punitive damages at the outset of this litigation. After defendants’ preliminary objections to punitive damages were overruled, one defendant attempted a second bite at the apple by filing a motion for judgment on the pleadings, hoping to have allegations of its recklessness and gross negligence stricken because allegations related to sexual abuse of Grace were time barred by the statute of limitations. Specifically, the defendant argued that the Minority Tolling Statute⁹ did not apply to a deceased minor plaintiff. In response, we argued that the minority tolling statute addresses situations in which a minor has no parent or guardian to bring suit on their behalf, or whose parent or guardian may, for any number of perfectly valid reasons, be unwilling or unable to do so. In our case, the Minority Tolling Statute permitted us to move forward with our claims because Grace had no guardian to bring suit on her behalf during her life since the very people abusing her were the only ones with standing to sue on her behalf. The Court agreed and denied defendant’s motion.

Because cases involving adoption and foster children entail many Pennsylvania statutes and regulations, it is imperative for attorneys to be aware of the difficulties that each presents. The issues described above were only a few, but critical, obstacles that we encountered in this case. Fortunately, we were able to overcome the arguments made by the defendants and deliver an outstanding result for our client.

Read the full issue of the original publication of Verdict here.

¹ In April 2021, Saltz Mongeluzzi & Continued on page 8 Bendesky PC attorneys Robert Mongeluzzi, Larry Bendesky, Adam Pantano and Scott Fellmeth secured an $8,900,000 settlement on behalf of the Estate of Grace Packer against three (3) private entities that provided foster, adoption, and behavioral health services to Grace.

² 23 Pa. C.S.A. §2901 et seq.

³ https://www.pagov-pair.org.

⁴ 23 Pa. C.S.A. §6301 et seq.

⁵ 23 Pa. C.S.A. §6340(b).

⁶ 23 Pa. C.S.A. §6303.

⁷ 55 Pa. C.S.A. §3130.44(d).

⁸ 18 Pa. C.S.A. §9101 et. seq.

⁹ 42 Pa. C.S.A. §5533.

Editor’s Note: Adam Pantano, a Partner at Saltz Mongeluzzi Bendesky, P.C., handles a wide range of complex civil litigation involving motor vehicle and trucking accidents, construction accidents, premises, and product liability, personal injury, and workplace accidents. You may contact Adam at: apantano@smbb.com.

Scott Fellmeth, an Associate at Saltz Mongeluzzi Bendesky, P.C., focuses on catastrophic construction site and work place accidents, and product defects and malfunctions. You may contact Scott at: sfellmeth@smbb.com.