Martin v. Chinese Children Adoption Int'l
| Decision Date | 10 November 2020 |
| Docket Number | Civil Action No. 1:19-cv-02305-STV |
| Parties | TAMMY MARTIN and BARRY MARTIN, individually and on behalf of their minor children Minor Child N and Minor Child J, Plaintiffs, v. CHINESE CHILDREN ADOPTION INTERNATIONAL, Defendant. |
| Court | U.S. District Court — District of Colorado |
Entered By Magistrate Judge Scott T. Varholak
This matter is before the Court on Defendant Chinese Children Adoption International's Motion to Dismiss (the "Motion"). [#41] The parties have consented to proceed before the undersigned United States Magistrate Judge for all proceedings, including entry of a final judgment. [##16, 18] The Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Motion is GRANTED IN PART and DENIED IN PART.
After their six children reached adulthood, Plaintiffs Tammy and Barry Martin (collectively, the "Martins") decided to adopt additional children. [#38, ¶ 22] In March 2014, the Martins adopted Minor Child N ("N") from China through Bethany Christian Services. [Id. ¶ 24] The adoption of N was a positive experience for the Martins and for N, and the Martins decided to adopt another child as a sibling for N. [Id. at ¶ 25] The Martins wanted to adopt another child from China due to their knowledge of the adoption process there, and the racial affinity that would be shared between N and the second adopted child. [Id. at ¶ 26]
On September 18, 2015, the Martins adopted Minor Child L ("L") through Defendant Chinese Children Adoption International ("CCAI") from the Dalian Social Welfare Institute orphanage in China. [Id. at ¶ 27] CCAI is an adoption agency that matches "waiting children" with applicants for a fee. [Id. at ¶¶ 12-13] A waiting child is a child that has been evaluated by the agency and can be matched and subsequently adopted by a prospective adoptive applicant. [Id. at 2 n.1] CCAI provides certain information on a waiting child to the applicant, including photographs, a physical examination, medical information relating to the child's condition, if available, basic developmental information, and background information composed by the orphanage, based on the child's personality, preferences, history in the orphanage, and daily routine.[Id. at ¶ 18] CCAI explained on its website that waiting children "range in age from about 1 year to 13 years at the time of match." [Id. at ¶ 19]
CCAI representatives represented to the Martins that L's date of birth is July 3, 2003, and that he was 12 years old at the time of adoption. [Id. at ¶ 29] Plaintiffs allege that L was in fact at least 15-16 years old at the time. [Id. at ¶ 30] CCAI did not investigate L's true age and, according to the Second Amended Complaint, had they done so, they would have realized that L was at least 15-16 years old. [Id. at ¶¶ 30-32] Plaintiffs contend that they would not have adopted L if CCAI had accurately represented his age. [Id. at ¶ 101]
L joined the household in September 2015. [Id. at ¶ 36] Within one month of L moving into the Martin house, N's hair began to fall out, he had a bloody stool, he stopped eating, and he was continually upset, crying, and banging his head. [Id. at ¶ 37] N ultimately went bald at the age of 5. [Id. at ¶ 38] N would also run into the Martins' bedroom during the night to get into bed with them. [Id. at ¶ 65]
In 2015, the Martins also sought to adopt a child with special needs. [Id. at ¶ 39] In January 2016, the Martins finalized the adoption of Minor Child J ("J") through CCAI. [Id. at ¶ 42] When the Martins adopted J, employees from CCAI represented that J had a diagnosis of hydrocephalus and cerebral palsy. [Id. at ¶ 43] CCAI did not give any information to the Martins regarding the underlying cause of J's hydrocephalus and did not indicate whether he had a shunt. [Id. at ¶ 47]
The Martins noticed a scar on J's head. [Id. at ¶ 48] On multiple occasions, the Martins asked representatives from CCAI, including Judy Winger, a social worker, about what had caused the scar. [Id. at ¶¶ 28, 48-49] Ms. Winger responded by stating thatCCAI would look into the issue. [Id. at ¶ 49] Ms. Winger told the Martins that CCAI would "look into it" and, finally, told the Martins that the orphanage had said that J had not received surgery. [Id.] Ms. Martin questioned how that information could be accurate, given the visible scar on the back of J's head. [Id. at ¶ 51] Nonetheless, CCAI did not disclose what caused the scar and did not conduct any investigation into the scar or J's medical history. [Id. at ¶¶ 50, 52] Prior to the finalization of J's adoption, CCAI discouraged the Martins from conducting any of their own independent investigation; CCAI representative Sheila King told the Martins not to contact organizations other than the orphanage because doing so could harm CCAI's operations in China. [Id. at ¶¶ 53-54]
After adopting J, Ms. Martin began to conduct her own investigation on hydrocephalus. [Id. at ¶ 55] As part of this investigation, Ms. Martin learned about a Hong Kong not-for-profit organization called MedArt that supports Chinese orphans needing medical care. [Id. at ¶¶ 55-56] On MedArt's website was J's image and a brief description detailing the fact that J had previously undergone brain surgery. [Id. at ¶ 57] In 2018, Ms. Martin contacted MedArt and representatives told Ms. Martin that J had surgery in 2011 to remove a brain tumor. [Id. at ¶ 58] Plaintiffs allege that if CCAI had investigated J's medical history, discovered the brain tumor, and informed the Martins of this tumor, the Martins could have notified J's neurologist of the surgery in 2016 instead of 2018. [Id. at ¶ 59] As a result of this delay, J has suffered further medical complications, and is now going blind. [Id. at ¶ 60]
After beginning to live with the Martins, J would wake up screaming and crying. [Id. at ¶ 64] J complained of pain in his buttocks. [Id. at ¶ 66] The Martins believed thepain was a result of J's abuse at a Chinese orphanage, but J later developed viral warts around his anus. [Id. at ¶¶ 66-67]
The Martins discovered that L's alarm would go off every night at 3 a.m., at which time L would rape his adoptive brothers. [Id. at ¶¶ 68-69] The Martins confronted L, who admitted to the abuse. [Id. at ¶ 70] On March 19, 2016, the Martins took L to a behavioral center, where L told his therapist that he had strong sexual urges that he could not control, and that he would continue the abuse of his adoptive brothers if given the chance. [Id. at ¶¶ 71-72] L subsequently told the Martins that he had been raped, prostituted, and forced to watch pornography at the orphanage [Id. at ¶74] According to the Second Amended Complaint, the orphanage "had a reputation for prostituting the children in its care to adults." [Id. at ¶ 104] According to Plaintiffs, prior to the adoption, CCAI did not investigate L's background or sexual history and "did little if any investigation into the conditions at the orphanage where [L] was housed while a 'waiting child.'" [Id. at ¶¶ 33-35] Had CCAI investigated and accurately reported L's sexual history, the Martins would not have adopted him. [Id. at ¶ 102]
In March 2016, L was charged with two counts of sexual battery and sent to a juvenile detention center. [Id. at ¶ 73] While housed in juvenile detention, L underwent a psychosexual assessment by a counseling service, which revealed that L was at a high risk of reoffending and needed specialized residential therapy for his sexually maladaptive behaviors. [Id. at ¶¶ 86-87] L admitted that he had been removed from foster care in China for sexually acting out with another child at the age of 5 or 6 and admitted to being sexually active with adults in China since the age of 11. [Id. at ¶¶ 80-81] Plaintiffs allege that L "established a pattern of sexually exploiting multiple children including his twoadopted brothers as well as another boy, when he was age 11." [Id. at ¶ 84] L was assessed to be at high risk to reoffend and remains in custody as a result of his abuse of his adoptive brothers. [Id. at ¶¶ 85, 88]
The Martins notified CCAI of L's crimes. [Id. at ¶ 89] CCAI denied having knowledge of L's sexual history. [Id. at ¶ 90] In response to Ms. Martin asking him to help the Martins understand what had happened to L, CCAI's President, Joshua Zhong, flew to Indianapolis and met with Ms. Martin and L at L's juvenile detention facility. [Id. at ¶¶ 91-92] Mr. Zhong interviewed L, and L eventually recanted his admissions regarding his sexual history. [Id. at ¶ 94] According to Plaintiffs, Mr. Zhong's "manipulative interview" of L delayed the reporting of accurate information about the sexual abuse to L's therapist. [Id. at ¶ 95] This information would have been beneficial in the trauma therapy for all three children. [Id. at ¶ 96]
Plaintiffs allege that the Martins were forced to sell their home—quickly and at a loss—and move across the country in an effort to help N and J cope with the abuse they had suffered, including moving away from the traumatic memories associated with the home. [Id. at ¶¶ 107, 108] The Martins lost their health care business, and both N and J have post-traumatic stress disorder ("PTSD"), attachment disorder, and numerous other mental and physical health conditions, including irritability, sleep disturbance, rage, and anxiety. [Id. at ¶¶ 109-13]
The Martins, individually and on behalf of N and J, filed the instant action on August 13, 2019. [#1] Plaintiffs filed the First Amended Complaint and Jury Demand on October 29, 2019. [#21] On April 8, 2020, this Court granted CCAI's Motion to Dismiss the FirstAmended Complaint, but granted Plaintiffs leave to file a Second Amended Complaint. [#32]
On May 5, 2020, Plaintiffs filed their Second Amended Complaint. [#38] Through the Second Amended Complaint, Plaintiffs...
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