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Friday, April 26, 2013

Ind. Decisions - "COA sides with Canadian couple who sued adoption agency over drug-addicted baby"

Yesterday's Not for Publication opinion in Jessica and Gerson Urbina v. Tina Klinkose-Kyler, Laronda Southworth and A Bond of Life Adoptions, LLC (NFP) is now the focus of a long WRTV story. Some quotes from the story:

The Indiana Court of Appeals has sided with a Canadian couple who was set to adopt a baby in Noblesville before learning the infant was born addicted to drugs, information the adoption agency did not share.

Jessica and Gerson Urbina, of Canada, were working with Zionsville-based adoption agency A Bond of Life Adoptions, or ABLA, when a prospective match was found with a pregnant woman in Noblesville.

After the baby was born, the couple traveled to Indiana and spent time with the newborn at the hospital, choosing a name and sending pictures of the baby to their friends and family, according to their complaint.

It was then that a social worker told the couple that the baby was being monitored for withdrawal symptoms caused by the birth mother's methadone use during pregnancy, according to the complaint.

The same information had been passed along to the adoption agency several days earlier, but ABLA did not inform the Urbinas, according to the complaint.

From the 17-page opinion written by Judge Friedlander:
[W]e must decide whether the Urbinas would be entitled to establish under any set of facts admissible under the allegations of the complaint that the Agreement imposed upon ABLA a duty to divulge the contents of the social worker’s call at some point between the time ABLA was apprised of it and when the Urbinas discovered independently that the infant might be suffering from chemical withdrawal. * * *

Having found the existence of a duty to divulge pertinent medical information to the Urbinas on contractual grounds, we need not determine whether such a duty arose upon alternate bases such as the duties of an agent to its principal or fiduciary duties that arose by virtue of the relationship between the Urbinas and ABLA. We reiterate that those theories of duty ultimately derive from the contract that we have concluded imposed a duty upon ABLA to disclose to the Urbinas any information it gathered about an identified candidate for adoption.

All of that said, we express no opinion as to the merits of the Urbinas’ claim for damages based upon the breach of that duty with respect to any of the theories of recovery in the Urbinas’ complaint for damages. We merely hold that in the current posture, i.e., a T.R. 12(B)(6) motion to dismiss, and considering only the facts alleged by the Urbinas in the complaint, the Urbinas might be entitled to establish under some set of facts that the Agreement imposed upon ABLA a duty to divulge to the Urbinas the contents of the social worker’s call. * * *

Judgment reversed and remanded with instructions.

The ILB adds this opinion to its "running list of cases designated as NFP that perhaps should not have been," last discussed in this April 19th post.

Posted by Marcia Oddi on April 26, 2013 12:30 PM
Posted to Ind. App.Ct. Decisions