## Facts

- Mathew N. was born in 1986 and, at birth, had alcohol and cocaine in his system.
- Mathew’s natural mother regularly used cocaine and alcohol during pregnancy and engaged in prostitution.
- After the mother’s custody and parental rights were terminated, the City and County of San Francisco, through its department of social services, placed Mathew for adoption.
- Ann Marie N., a social worker, sought to adopt Mathew. She was told Mathew had been exposed to cocaine and alcohol and indicated in adoption paperwork that she did not want to adopt a child with a blood disorder.
- The city did not tell Ann Marie that Mathew’s natural mother had engaged in conduct associated with HIV exposure risk.
- Shortly after placement, Ann Marie took Mathew to a pediatrician. The pediatrician did not test Mathew for HIV; the pediatrician later stated HIV testing would have been done if Ann Marie had known about the mother’s HIV-risk conduct.
- The adoption was finalized in 1990.
- About six years later, a city social worker informed Ann Marie that Mathew’s birth mother had died of AIDS. Mathew was then tested and found HIV positive.
- Ann Marie sued the city for negligence, intentional misrepresentation, and intentional concealment based on the city’s alleged failure to identify/test for HIV risk and to disclose related information to her before the adoption was finalized.

## Issues

1. May a public adoption agency be held liable in negligence to a prospective adoptive parent for failing to identify, test for, or disclose a child’s risk of HIV infection?
2. Did the record support a claim for intentional misrepresentation based on alleged statements or omissions about Mathew’s health and HIV status?
3. Did the evidence at trial support sending an intentional-concealment claim to the jury based on alleged nondisclosure of HIV-related information?

## Decision

- The Court of Appeal affirmed summary judgment for the city on the negligence claim.
- The Court of Appeal affirmed summary judgment for the city on the intentional misrepresentation claim.
- The Court of Appeal affirmed the trial court’s grant of nonsuit for the city on the intentional-concealment claim.

## Legal Principles

- A “wrongful adoption”-type claim framed as a failure to investigate, discover, or test for a medical condition is treated as negligence; without a legally actionable duty and proof meeting that standard, the claim fails.
- Intentional misrepresentation requires evidence of a knowingly false representation of material fact, made to induce reliance, with justifiable reliance and resulting harm; mere nondisclosure or lack of investigation does not establish knowing falsity.
- Intentional concealment requires proof that the defendant knew a material fact, had a duty to disclose it, intentionally concealed it to induce reliance, and caused harm through justifiable reliance; evidence of awareness of risk behavior, without proof of concealment of a known fact meeting these elements, is insufficient.
- Summary judgment is proper when the plaintiff cannot show a triable issue of material fact on required elements of the causes of action.
- Nonsuit is proper when, after the plaintiff’s case-in-chief, the evidence is insufficient as a matter of law to permit a reasonable jury to find for the plaintiff on the claim.

## Conclusion

The court affirmed a defense judgment for the City and County of San Francisco in an adoption-related suit arising from a child’s later-discovered HIV infection. It held that Ann Marie’s negligence theory based on alleged failures to identify/test for HIV risk could not proceed and that the evidence did not support fraud-based liability for intentional misrepresentation or intentional concealment regarding Mathew’s HIV status or related risk information.


Ann Marie N. v. City and County of San Francisco, 2001 WL 1261958 (2001)