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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, Roman, home. “ ‘A beautiful, healthy, on-target, blond-haired boy’ was what they had quoted to us,” Ms. Harshaw said.
After the adoption in 2004, Roman 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 Roman 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 Roman, 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 Roman will need.
After Roman’s problems were diagnosed, the agency offered to end the adoption, to try placing Roman 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 Roman, 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.”
No organization tracks the number of cases against adoption agencies, and academics and industry officials say many are settled out of court and sealed, so the outcomes are unknown.
But these days, “a far greater percentage of these wrongful adoption suits relate to international adoptions,” said Marianne Blair, a University of Tulsa law professor.
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.
Those regulations were developing as the Harshaws’ adoption was proceeding, and at most agencies, “the atmosphere was definitely an emphasis in getting what could be obtained and making sure that they disclose that,” said Joan H. Hollinger, a law professor at the University of California, Berkeley, who is serving as an expert witness for the Harshaws. Agencies were also focused on “preparation of adoptive families for what they might encounter,” Professor Hollinger said.
Bethany says it clearly advised the family that children from Russia could have problems, including serious ones, and that records might be inaccurate.
While the Harshaws’ pediatrician raised overall risks after reviewing a video of Roman and a two-page medical summary, observing that some of the notations could indicate learning disabilities, she saw no specific indications of severe problems on the pre-adoption records provided. She noted a lack of detailed, up-to-date information and said she could not see Roman’s face clearly. (Facial characteristics may provide clues to health deficiencies.)
“They were warned about generalities,” said their lawyer, Samuel C. Totaro Jr., but the agency caseworker told them a Russian-trained doctor based in New York had “gone over there and seen him, and you have a healthy, on-target child, and the family took great reassurance from that.”
In a deposition, the caseworker acknowledged she had said that the doctor, Michael Dubrovsky, visited the orphanages to “see the children” and review pictures, videos and medical information. The agency says the Harshaws misinterpreted that to mean Dr. Dubrovsky had examined Roman.
In a deposition, Dr. Dubrovsky said he had never seen Roman, had not practiced medicine for years and was a facilitator for Bethany, not a medical screener.
The agency also suggests that the fetal alcohol syndrome was unlikely to have been detected before the adoption, noting that the Harshaws did not receive that diagnosis until two years later.
Mr. Zausmer said the agency did not conceal information and provided a translated synopsis of the Russian medical records that was standard at the time.
“We don’t believe that there was anything in the Russian records that would have materially affected any adoption decision,” Mr. Zausmer said.
But Dr. Ronald S. Federici, a neuropsychologist who diagnosed Roman’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 Roman enough to send him home; either way, he will need extensive lifetime care.
“What we’ve been through and what we’ve lost,” Mr. Harshaw said. “Every day is ‘Groundhog Day,’ a repeat of the stress and anger and frustration.”
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