Smithlawn Maternity Home: First RICO Lawsuit

Smithlawn has the dubious distinction of being the first adoption agency in the nation to be sued under the federal Racketeering and Corrupt Organizations (RICO) Act.

In 1980, Smithlawn became a charter member of a fledgling organization formed to defeat the proposed Model State Adoption Act, which would have restored identity rights to adoptees. Then-named National Committee For Adoption (NCFA), representing a handful of private adoption agencies, dedicated itself to protecting alleged "promised confidentiality" of mothers who had surrendered children for adoption. (See Post #3, 'When Rights Came Close to Being Restored')

A little more than a decade later:

The Dallas Morning News

April 21, 1992 (Page 17A)

Couple sue over 2 kids' health; agency declines to comment

By Tracy Everbach

Staff Writer 

In 1988, Debra and Chris Burgess decided to adopt an infant boy and girl from a private Lubbock agency. Both children, the Burgesses say they were told, were healthy and had excellent backgrounds.

     But nearly four years later, the Nacogdoches couple’s children are not in excellent health. In fact, they need constant care.

     Three-year-old Caleb Aaron is mentally retarded and autistic. His sister, 4-year-old Sarah Suzanne, suffers from a brain disorder, a personality disorder and developmental problems.

     Only recently, say the Burgesses, did they learn that Sarah’s mother had serious behavioral problems and used drugs before and during pregnancy. They also discovered that Caleb had been delivered by forceps and vacuum and had undergone severe distress during birth.

     The children are at the center of a $105 million lawsuit that the Burgesses filed against Smithlawn Maternity Center. The couple allege that the agency’s employees lied to them, withheld information and denied them access to medical and other records.

     Smithlawn executive director Howard Hulett, who is named as a defendant in the case, said last week that he could not comment on the suit. He also declined to comment for two other Smithlawn employees named as defendants: Isla Whorton, the coordinator of adoption services, and Frances Phillips, director of maternity services.

     In their suit, the Burgesses allege that Smithlawn and its employees lied and withheld information in a pattern of corrupt actions that the couple contend should be prosecuted under federal racketeering statutes.

     According to their Dallas attorney, Neil Cogan, their claim is the first adoption suit in the country to be filed under those racketeering laws.

“People go to private adoption agencies expecting professionalism,” said Mr. Cogan, a Southern Methodist University law professor. “People think private agencies will be more forthcoming (than state agencies). Unfortunately, in a number of cases, they’ve been disappointed.”
     As little as four years ago, adoptive parents in Texas were not entitled to see their children’s medical, educational, social and other records. A page or two of background information was usually all they received.
     “In many cases, no records were sent,” said Mr. Cogan, who filed a number of lawsuits on behalf of adopting families whose initially healthy children later required medical or psychological treatment.
     But in 1989, the Legislature passed laws requiring the release of specific information to potential adoptive parents. The information includes medical and psychological records and family health and criminal histories.
     “The reform allows folks to look at the records and decide if they can care for the child,” Mr. Cogan said.
     The Burgesses had previously filed a complaint against Smithlawn with the Texas Department of Human Services, which monitors 168 private and state-run facilities involved in child placement.
     Investigator Barbara Clark subsequently determined that Smithlawn had violated several state regulations in dealing with the Burgesses and other families. The agency, she said, “withheld vital information from adoptive parents, failed to provide needed medical treatment for a foster care child, divulged confidential information and pressured birth mothers to place their babies.”
     In Smithlawn’s November 1991 answer to that report. Mr. Hulett said the home admitted no wrongdoing but had made policy changes and would comply with state regulations.

Not until last month, however, did the Burgesses receive complete medical records for Sarah, the couple say. They had received Caleb’s records 10 months earlier. The children’s records revealed their medical history.

     The family’s lawsuit says that it will cost about $250,000 a year to care for the children. Mrs. Burgess now cares for them at home. Her husband, who has worked as a laborer, was injured last year in an automobile accident and also is at home. They recently moved from Memphis, Tenn., to be near relatives who could help them financially and emotionally, Mr. Cogan said.      The couple could not be reached for comment.

     They are receiving some state money to help care for the children, but it’s not nearly enough, Mr. Cogan said. “They live very, very modestly,” he said.

     In their federal lawsuit, the family also sued Lubbock lawyer George Thompson III, contending that he had a conflict of interest when he represented them during the 1988 adoptions. The Burgesses say he failed to tell them that he sat on Smithlawn’s board of directors.

     Mr. Thompson did not return a telephone call to his office.

    • – • – •

Follow up stories:

Story 2

THE DALLAS MORNING NEWS, 02/13/93, Page 35A

Adoption agency to pay parents over $1 million

Tracy Everbach, Staff Writer of The Dallas Morning News

A couple who sued a Lubbock adoption agency last year, alleging that it failed to disclose the health problems of two infants they adopted, will receive more than $1 million.

   Debra and Chris Burgess of Nacogdoches, Texas,  and their children, Caleb Aaron, 4, and Sarah Suzanne, 5, were awarded the damages in a settlement approved Friday by U.S. District Judge Jorge Solis of Dallas.

   The parents had accused Smithlawn Maternity Center of Lubbock and three officials of lying, withholding information and denying them access to records about their children. The agency and its employees did not admit to any fraudulent acts, but they agreed in the settlement to pay damages for failing to provide medical information to the parents before the adoptions.

      In the lawsuit, the family said that it would cost about $250,000 a (year? - unreadable/blurry on original news clipping photocopy)...Sarah, who suffers from a brain disorder, personality disorder and developmental problems.

      Not until last year -- four years after the 1988 adoptions -- did the Burgesses learn that Sarah's mother had behavioral problems and used drugs before and during the pregnancy. They also discovered that Caleb had been delivered by forceps and vacuum, and had undergone severe distress during birth.

      Under Texas laws passed in 1989, potential adoptive parents must be provided such information as medical, psychological and family health records.

    The parents also sued Lubbock lawyer George Thompson III, maintaining that he had a conflict of interest in representing them during the adoptions because he sat on Smithlawn's board of directors. Under the settlement, he must pay the family $25,000 in damages. Three Smithlawn officials must pay $25,000 each, and the adoption agency must pay $950,000.

• – • – •

STORY 3

THE DALLAS MORNING NEWS, 04/15/96, Page 18A

Pregnant women's home struggling with changes

Associated Press

LUBBOCK - The face of adoption has changed drastically since Frances Phillips began taking in pregnant South Plains women 36 years ago. In the years since, attitudes, laws and situations have changed, and the struggle to keep pace has meant some problems for Ms. Phillips and her Smithlawn Maternity Home.

   State regulators who put the home on probation for six months say Smithlawn has cleared up most of its problems, but what began in 1960 as an in-home foster program has seen its share of trials since.

     "Everything is in flux," Ms. Phillips said.

   Adoptive parents who recently lost custody of a 2-month-old baby girl to her birth father have sued the home, and it's not the first court battle for Ms. Phillips.

   But Smithlawn's problems aren't unusual and they aren't serious, state child welfare officials say.

     "In general, some [adoption] agencies have had a more difficult time than others in recognizing that there has been a change in our culture, that more and more women are choosing to . . .single-parent their children," said Nanci Gibbons, who oversees facilities such as Smithlawn for the Texas Department of Protective and Regulatory Services. 

     Mrs. Gibbons downplayed a report filed a year ago that said Smithlawn wasn't doing a good job of telling mothers-to-be what alternatives to adoption were available.

     The inspector also was "concerned that birth mothers are continuing to be told they do not have to name the father of the child."

   A Texas Tech student entered the home, and her baby was adopted by a Dallas-Fort Worth couple without the father's consent.

     Last week, Michael Hernandez, 19, won custody of the infant, resulting in a tear-filled courtroom scene in which the adoptive family gave the baby to Mr. Hernandez. The judge ordered Smithlawn to pay all legal fees involved in the case.

    Smithlawn settled the last lawsuit filed against it four years ago, when a Nacogdoches couple said that the home didn't tell them of their two adopted children's medical problems.

     A state investigation then found the home withheld medical information from adoptive parents and actively steered women toward adoption. The investigation resulted in a six-month probation, which Ms. Gibbons said is one step short of license revocation.

   Ms. Phillips said the autism the couple cited doesn't show up until after birth, making their suit groundless.

   Changes in the adoption market also are putting the squeeze on Smithlawn. Ms. Gibbons and Ms. Phillips agree fewer women are choosing adoption, but services offering adoption have increased more than threefold over the past 10 years, from 60 to 200.   

   "It is a business, and there is money to be made," Ms. Gibbons said. Parents who aim advertisements directly at pregnant women to bypass adoption services such as Smithlawn hurt the nonprofit agency as well, Ms. Phillips said.

     A home that once housed 16 mothers and was placing others in private homes now averages about nine mothers at a given time. But the home still plays an important community role, supporters say.

     "Frances told me that about half of the children they place are minority or mixed-race kids," said Bill Pierce of the National Council for Adoption, ". . . if you look at a lot of adoption placement folks, you will perhaps not find a similar kind of picture."

    • – • – •

Serious Ethics Issues

For an allegedly 'Christian' agency, there are issues involved here that are totally incongruous with both Christian ethics and the "sound ethical policies and practices" touted by the organization it helped to form in 1980.

1. Exerting pressure on mothers-to-be who come to them for help to forgo their own God-given maternal instincts so that others, deemed to be more deserving, could enjoy the blessings of parenthood. It's pretty difficult to picture Jesus approving of this.
2. Disenfranchising fathers in defiance of laws designed to protect their interests in their own children.
3. Risking failed adoptions and creating heartbreak for adoptive parents by trying to sneak adoptions through without acquiring legal consent of fathers.
4. Concealing and/or lying about medical backgrounds in infants it placed.
5. Permitting an attorney member of its own board of directors to represent a couple filing suit against them.
6. Bowing to the dog-eat-dog pressures of "the adoption market" that was "putting the squeeze on them" by lowering itself to the least common denominator of professional practice.

Questions:

How objective could this agency have been in counseling women with problem pregnancies when there was an admitted decrease in the supply of adoptable babies but a more than three-fold increase in adoption brokers competing for them? When a 'live one' walked through their door asking for help, what were her chances of getting impartial advice, including parenting assistance?

I ask you to superimpose this picture over the New Testament of our Holy Bible and tell me how it fits with the teachings of Christ or His Disciples. Is this really what Our Lord taught us?

I think not.


CONTINUED: To read additional accounts of NCFA member agencies conducting unethical practices, click on individual agencies listed on archive column, under the numbered entries.