Pope v. Department of Human Resources

• Decision Date: 06 July 1993
• Docket Number: Nos. A93A0401,s. A93A0401
• Citation: 434 S.E.2d 731,209 Ga.App. 835
• Parties: POPE v. DEPARTMENT OF HUMAN RESOURCES et al. MOORE v. DEPARTMENT OF HUMAN RESOURCES et al. MOORE et al. v. DEPARTMENT OF HUMAN RESOURCES et al. to A93A0403.
• Court: Georgia Court of Appeals

Page 731

434 S.E.2d 731

209 Ga.App. 835

POPE v. DEPARTMENT OF HUMAN RESOURCES et al.

MOORE v. DEPARTMENT OF HUMAN RESOURCES et al.

MOORE et al. v. DEPARTMENT OF HUMAN RESOURCES et al.

Nos. A93A0401 to A93A0403.

Court of Appeals of Georgia.

July 6, 1993.

Reconsideration Denied July 30, 1993.

Robert H. Benfield, Jr., Decatur, Thomas W. Malone, Atlanta, for Pope.

Newton & Howell, John T. Newton, Jr., Griffin, for Moore.

Michael J. Bowers, Atty. Gen., Mary F. Russell, Asst. Atty. Gen., Remar & Graettinger, Robert B. Remar, Atlanta, for Dept. of Human Resources.

BEASLEY, Presiding Judge.

These appeals present another aspect of the case of two babies who were unknowingly substituted for each other at birth. See Moore v. Pope, 196 Ga.App. 475, 396 S.E.2d 243 (1990) rev'd Pope v. Moore, 261 Ga. 253, 403 S.E.2d 205 (1991), involving baby Cameron's adoption by Mrs. Pope.

On October 7, 1983, Jodie Pope, a white female married to a white male, was admitted to Griffin-Spalding Hospital, where she delivered a white male infant now named Melvin Eugene Moore. That same day, Tina Williams, an unmarried white female, was likewise admitted to Griffin-Spalding Hospital, and she delivered a biracial child, now named Cameron Keith Pope, whose father was Barnes, a black male.

Prior to discharge of the mothers on October 9, someone in the hospital switched the babies, so that Mrs. Pope left the hospital with Ms. Williams' child and Ms. Williams left the hospital with Mrs. Pope's child. On the morning of the discharge, each woman signed a certification that she had examined the baby she was given at discharge and had determined that the child was in fact her baby.

Before entering the hospital, Tina Williams had informed Janice Maddox, a Spalding County Department of Family & Children Services (DFACS) adoption caseworker, that she intended to surrender her child to DFACS for adoption. She told Maddox that Barnes was the father, that the child was thus biracial, and that she had a daughter by Barnes who had blonde hair and looked as if she tanned easily but was in all other respects white in appearance. Maddox viewed a color photograph of the child which showed this to be true.

After Cameron was born but while Ms. Williams was still in the hospital, she contacted Maddox and told her that she had changed her mind. Williams later decided that she wanted to put the baby up for adoption after all. On October 12, she brought Melvin to Maddox and surrendered him for adoption. She told Maddox that Barnes denied he was the father and had asked for a blood test. Williams certified that the baby was hers, signed a sworn affidavit that Barnes was the father, and surrendered her parental rights.

When Maddox tried to obtain a surrender of parental rights from Barnes, he did not appear for a scheduled interview or respond to telephone calls. As a result, Maddox spoke with an attorney for the Department of Human Resources (DHR) about instituting judicial proceedings to terminate the parental rights of Barnes, as well as "John Doe" respondents. However, on December 6, 1983, Barnes unexpectedly came to the Spalding County DFACS office, executed a sworn acknowledgment of paternity, and surrendered his parental rights. He also answered a questionnaire which showed that he had many African-American relatives who were also light-skinned. He testified that he nonetheless told Maddox at that time that the infant was not the same baby he had seen in the hospital, the baby was smaller and a different color, that he was not the father of this child, and that he had stated this to Williams when she brought Melvin home from the hospital. He also testified that he told Maddox he had asked to take a blood test.

When Maddox delivered Melvin to a foster mother prior to the child's being adopted, the foster mother expressed the opinion that he was fully white. Maddox was concerned with Melvin's fair complexion and purported biracial parentage out of a desire to place him with an appropriate family and to make him aware of what she believed was his biracial heritage. She consulted the district social services director, who sought the advice of a special adoption consultant as to how to resolve ambiguities as to whether a child is biracial. The consultant gave instructions to physically examine the child for dark skin pigmentation, known as Mongolian spots, as an indication that a child is biracial, although the consultant advised that their absence does not establish that the child is not biracial. The consultant also advised them that biracial children sometimes appear to be white in early infancy but experience skin darkening over time. At Maddox's direction, the foster mother examined Melvin for such spots but did not find any.

In January 1984, Melvin, still in foster care, underwent surgery at the Griffin-Spalding Hospital. So that the child would be provided with informed medical care thereafter, Maddox obtained parts of the medical records relating to his surgery and incorporated them into his adoption record pursuant to standard adoption procedure. Coincidentally, Cameron was also admitted to the Griffin-Spalding Hospital that same month. No one noticed any discrepancy between the blood types of the children as shown in their neonatal records and their blood types as shown in medical records relating to their treatment in 1984.

Through the State Adoption Exchange, DFACS adoption caseworker Lovett placed Melvin for adoption in April 1984 with the Moores, a biracial couple. (Each was not biracial; one was black and one was white.) In October 1984, their petition to adopt him was granted.

In March 1988, Jodie Pope's husband left her, denying paternity of Cameron. As part of a subsequent divorce proceeding, they all submitted to blood tests which showed that neither he nor Jodie is Cameron's biological parent. However, Jodie adopted him. See Pope v. Moore, supra. The boys were now four-and-one-half years old.

The Popes conducted a review of birth records at the Griffin-Spalding Hospital for October 1983 and discovered Tina Williams' records. They also obtained a court order for access to Melvin's adoption records and, as a result, located the Moores. Melvin subsequently went to visit his birth mother Jodie Pope for Thanksgiving, and she refused to return him. Custody is currently in dispute in another case. ¹

The children, Cameron (adopted by Jodie Pope) and Melvin (adopted by the Moores), by next friend and mother Jodie Pope, filed identical actions against the Georgia DHR, the Georgia DFACS, the Division of Social Services, the Georgia Adoption Exchange, the Spalding County DFACS, the Chatham County DFACS, and various officials and employees, seeking damages for general negligence and professional malpractice because of defendants' failure to recognize that they placed the wrong child for adoption. Plaintiffs state that there are basically two groups of defendants: (1) those directly involved in the wrongful placement of Melvin with the Moores; and (2) those who failed to implement specific training procedures and policies, such as having a child whose biracial parentage is in doubt examined by a trained physician, which plaintiffs allege would have averted the wrongful placement or corrected it after it had occurred.

Defendants moved for summary judgment, arguing among other things that the undisputed material facts showed no negligence on their part. They submitted affidavits and depositions in which experts who are familiar with the standard of care required of workers in the fields of adoption and child placement, and who had reviewed the adoption record of Melvin Moore, testified: The DHR has set proper policies, procedures, and guidelines concerning the placement and adoption of biracial children; reasonable efforts should be undertaken to ascertain the paternity of a child surrendered for adoption; Maddox's actions in this regard met or exceeded professional standards; in cases involving unwed mothers surrendering children for adoption, putative fathers are infrequently named by the mother, and if they are named, they rarely acknowledge paternity; where the putative father denies paternity, the appropriate course of action is to obtain a termination of the parental rights of the putative father and "John Doe" respondents through the judicial process; it is not the usual or customary practice to perform blood testing when parental rights are being terminated, and adoption caseworkers lack the authority to compel parties to submit to blood testing; there is no requirement that an adoption caseworker obtain complete medical records for an adoptive child and compare findings for inconsistencies; Maddox obtained all...