Wednesday, April 28, 2010

Adoptive Parents Sue Adoption Agency for Failure to Fully Disclose Child's Medical Condition in International Adoption

"In Lawsuit on Adoption, Focus Is on Disclosure"

Published: April 27, 2010

"Scores of complaints have been made in recent years against adoption agencies by people claiming they were inadequately informed or ill-prepared for problems their children turned out to have.

Many state laws and the Hague Convention now require agencies to disclose “reasonably available” records. But it can be unclear, especially in international cases, how assertive they are expected to be in getting such information.

The case of Chip and Julie Harshaw of Virginia Beach is, in some ways, the reverse of the now-familiar story of a Tennessee mother who put her Russian-born child on a plane home: The Harshaws are committed to raising their Russian son, even though they say they would not have adopted him had they known how severely impaired he was.

But when they decided to adopt, the Harshaws told their agency they could care only for a child with minimal health problems and “a good prognosis for normal development,” according to notes in the adoption agency’s paperwork.

They rejected one child because he had abuse-inflicted burns. But when a toddler in a Siberian orphanage appeared to fit their criteria, they brought the boy... home. “ ‘A beautiful, healthy, on-target, blond-haired boy’ was what they had quoted to us,” Ms. Harshaw said.

After the adoption in 2004, [the child] began showing “uncontrollable hyperactivity” and aggression, Ms. Harshaw said. He has threatened their 5-year-old biological daughter with a steak knife and a two-by-four, and held her underwater in a pool. Their 13-year-old biological son has felt so much stress that he has required therapy.

Therapeutic programs have ejected [the child] for kicking, biting, hitting and, most recently, on his 8th birthday, pulling out three of his teeth using a pen cap, fork or spoon.

Doctors finally diagnosed fetal alcohol spectrum disorder, brain damage and neuropsychiatric problems in [the child], whose I.Q. is 53. He was recently placed in an institution and is not expected to ever live independently, one of his doctors said.

The Harshaws are suing the agency, Bethany Christian Services, seeking compensation for the care [the child] will need.

After [the child]’s problems were diagnosed, the agency offered to end the adoption, to try placing [him] with another family. The Harshaws refused. “He’s not a dog; you don’t take him to a pound,” Ms. Harshaw said.

The family claims that Bethany indicated, inaccurately, that a Russian doctor working for the agency had examined [the child], and that Bethany gave them incomplete medical information when more detailed records were available. (Such records were produced by Bethany more than two years later.)

Bethany, which calls itself “the nation’s largest adoption agency,” disputes most of the claims.

“Bethany is a highly respected adoption agency that provided all the appropriate information for consideration by the Harshaws,” said Mark Zausmer, a lawyer for Bethany, based in Michigan. “Bethany provided this family counseling, extensive documentation, opportunities to consult with physicians, medical records and other materials from which they could fully evaluate how to proceed.” ...

Chuck Johnson, acting chief executive of the National Council for Adoption, an advocacy group, said, “There have been a growing number of families that have sued when they adopted a child from another country.”

Some lawsuits, Mr. Johnson said, come from families “expecting you to do the impossible when you did all you could,” but he said there had also been “agencies that have purposely concealed information.”

Issues of disclosure have drawn increasing attention in recent years. Lawsuits erupted in the 1980s over domestic adoptions in which histories of abuse and other problems were kept from adoptive parents.

“The philosophy was the blank slate, that adoption is a new start,” Professor Blair said. Now, she said, experts believe that “disclosure of health information is vital.”

As a result, many states enacted disclosure laws, followed by similar requirements in the Hague Convention, which apply to countries that ratify the treaty, as the United States did in 2008. Russia has signed the agreement but has not yet ratified it...

Dr. Ronald S. Federici, a neuropsychologist who diagnosed [the child]’s illness, said the full 10-page medical record the agency produced after the adoption, at the parents’ urging, would have shown that “the boy had fetal alcohol syndrome.”

The Harshaws hope the institution can stabilize [the child] enough to send him home; either way, he will need extensive lifetime care."

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