Miller v. Department of Social and Health Services
2003 WL 220958 (Wash. App. Div. 1)
The Millers sued DSHS for wrongful adoption, alleging the agency
breached its statutory obligation to disclose the health and social
history of the child they adopted. The jury found that DSHS was negligent
in failing to disclose information required by law, but concluded that the
Millers would have adopted the child even if the disclosures had been
made. 2003 WL 220958 at *1.
The trial court excluded expert testimony that the child had FAE.
The expert was a Dr. Robert Galack, who had treated the child at the
Fairfax Psychiatric Hospital. Galack knew that the mother drank before
and after the pregnancy (by then 13 years earlier), but had no specific
evidence that she drank during the 9 months of the pregnancy. Galack
thought that that was sufficient to infer that she drank during the
pregnancy.
The appellate court held that any inference that the mother drank
during pregnancy was pure speculation, and that the diagnosis of Dr.
Galack was therefore inadmissible.
"Because Phillip's birth mother drank alcohol before and after her
pregnancy, he assumed she must have consumed alcohol during the pregnancy
as well. Without evidence that Phillip's birth mother drank alcohol while
pregnant with Phillip, Dr. Galack's opinion that Phillip has fetal alcohol
effect and that this was a cause of his behavior problems was speculative
and without foundation."
2003 WL 220958 at *8. This reasoning seems in conflict with the
analysis in In the Matter of Natasha Milland, 146
Misc. 2d 1, 7-8 (Family Ct. N.Y. County 1989).
This decision highlights the need to inquire quite specifically
about alcohol use during the pregnancy in question.