Chip and Julie Harshaw vividly remember the first time they met a little 18-month-old boy named Roman in a Russian orphanage. It was December 2003.We call these lawsuits "wrongful adoption" suits. We saw a slew of them starting in the late 80s, though the history of hiding information or misrepresenting facts started much earlier.
"I remember squatting on the floor with some toys and hoping he would want to come over and interact with us which he did," Julie Harshaw said.
The adoption was arranged by Bethany Christian Services -- the largest adoption service in the country. The Virginia Beach couple made it clear to Bethany in their application that they wanted to adopt a child with a good prognosis for normal development. They put their trust in the agency and were assured Roman was fine.
"Our case worker had told us their doctor had gone over to see him physically examined him and that he was healthy and on target," said Chip Harshaw.
A month later, Roman settled into his new surroundings, immediately doting on his big brother Daniel. But over the next several years, the Harshaws say Roman developed from an on-the-go toddler to a child prone to violent tantrums.
"It would happen over anything and everything," said Julie.
There is a hole in his bedroom wall where the couple says Roman slams the door. He pulled several of his baby teeth out with a pen cap and threatened his sister Grace several times. "Roman went over and grabbed a two-by-four on the side and came up behind her and she had her back to him and he was going to hit her with it to stop her from leaving."
The Harshaws took Roman to many doctors and eventually a specialist diagnosed him with Fetal Alcohol Syndrome. Last year, they filed a federal lawsuit against Bethany Christian Services. In legal documents obtained by WAVY.com, the Harshaws claim Bethany misrepresented Roman's health.
In the early 20th century, there was actually fairly full disclosure about children to be adopted. Many of the kids were older, so hiding background information wasn't really possible. And the newly-professionalized social work movement favored disclosure. The popularity of the eugenics movement, with its focus on inheritable traits, also led to full disclosure. By the 50s, though, adoption practices changed. Agencies were more interested in hiding unpleasant information so as not to stigmatize adopted children, or harm their self-esteem. If the adoptive parents didn't know negative information, they wouldn't have to disclose it to the child later.
The first really big wrongful adoption case was Burr v. Stark County Board of Commissioners in Ohio in 1986. In that case, the agency told the adoptive family of a newborn that the child was healthy and born to an 18-year-old birth mother. When the child had serious health problems, including being diagnosed as mentally retarded, the parents got a court order to open the sealed adoption records. Turns out the birth mother was a 31-year-old mental patient who was psychotic and had a mild mental deficiency. It was also suspected that the birth father was also a mental patient at the same hospital. The agency also knew that the infant had had a fever a birth and was developing slowly. None of this was disclosed to the adoptive parents. The adoptive parents won the suit, and were awarded damages for past and future medical treatment and educational help.
The Burr case is a pretty clear case of fruadulent misrepresentation -- not only did the agency fail to disclose information, they gave false information. Wrongful adoption suits can also be brought just for failure to disclose, even without the misrepresentations. A suit can even be brought for negligence -- even though the agency didn't know anything negative, they should have known, depending on the jurisdiction. Not all states recognize a negligence cause of action for wrongful adoption.
Most of the wrongful adoption caselaw involves domestic adoption. But as international adoption has grown, so has caselaw about international wrongful adoption. In the international context, courts recognize that the agency's access to information is limited, and so long as there is no affirmative representation about the health of the child the agency avoids liability.
The Harshaws case will be interesting to follow. One fact on their side -- the agency apparently had a doctor examine the boy and report that he was healthy and on target. But it could be there were no signs of FAS at that time, and the doctor didn't miss anything, in which case there wouldn't be a misrepresentation. More interestingly, the adoptive father says the agency backtracked about the doctor's exam -- "they said, 'Oops Dr. Dubrosky never saw Roman." If that's true, that the doctor never saw the child but they represented that he had, that will be VERY damaging in the lawsuit. Certainly, this will be one to follow.
As always, this post is not intended as legal advice. Consult your own lawyer before taking any action. I've simplified and omitted to make the issue of wrongful adoption more understandable for lay readers.