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Frank Foundation, World Child and “Wrongful Adoption”

Original Article

It’s every adoptive parent’s nightmare. You go to an agency, one that is officially accredited to do adoptions from Russia and tell them you would like to adopt a healthy baby. You do everything you’re supposed to, are never told that the baby’s anything but normal. Then, a few weeks or months later you learn that the child you love and have bonded with has major problems, such as autism, “mild” mental retardation and seizures. The experts tell you your child will never be able to be independent.
So you sue the two agencies involved in the adoption, one of which is rumored to be the largest Russian adoption provider working in the U.S. And, after months of depositions, the case finally goes to court in what is known as a “wrongful adoption” lawsuit.

What happens next is that lawyers for both sides square off on the opening day, even before the jury is picked. And the allegations fly.

First off, if, as an adoptive parent, you sue, expect to see every aspect of your life under a microscope to see if you can be counter-sued. That’s what the lawyers for the defendants, Frank Foundation and World Child, did today, March 11, the first day of what is expected to be a 10-day trial. The lawyers for the agencies filed a motion for summary judgment, saying that they had a case against the adoptive parents because allegedly the adoptive father had a mental health condition that would have disqualified him from adopting.

That motion failed, but the team of lawyers for the agencies, nine by my count not counting a lawyer for insurance companies observing the trial, filed several more. One was to dismiss the request for $5 million in punitive damages. Another was to disqualify the medical expert. Another was to disqualify the expert who is expected to estimate the costs of caring for the handicapped family member for the rest of his life. Another was to exclude the child from the courtroom, as the lawyer for Frank Foundation said: this case will involve a level of emotionalism given the fact that the child is autistic, has a seizure disorder and is mildly retarded. Another was to keep a video showing a day in the life of the child from the jury.

Perhaps most lawyerlike but chilling was the “contract argument” that since the agency had offered to let the parents “disrupt” and they chose not to, the contract provides that the adoptive parents are therefore fully responsible. The parents’ attorney responded that children are not like cars or things one can just “take back,” and that they had bonded with and love the child. The lawyer also said that a Maryland court has already dismissed the argument that if you don’t like your child you can just have it adopted.

On the other hand, the two lawyers representing the parents were alleged to have failed to do what they should have done to enable the agencies’ lawyers to mount a proper defense. In a series of “who-did-what-when” exchanges, the plaintiffs’ team was accused of a history and pattern of delaying practices, failing to serve files, not getting their medical expert’s files transferred for analysis by opposing counsel, sending their witness list at the last minute and not providing a copy of videos expected to be shown to the jury.

Day Two of Roger Miles et al v. World Child et al continues at 9:30 EST March 12 in Courtroom 17 at the Judicial Center at 50 Maryland Avenue, Rockville Maryland.

Day two of the “wrongful adoption” lawsuit against Frank Foundation – Child Assistance International and World Child, Inc. concluded March 12 at approximately 12:30 p.m., with the lawyers for both sides smiling, shaking hands – even exchanging a hug – as they packed up their files. As usually happens in these cases, there was an “out of court settlement” – which means the amount of money that the insurance companies had to pay out is not a matter of public record. Earlier, in the lobby outside the courtroom, the atmosphere was different: the adoptive father was grim-faced and the adoptive mother was in tears. But at least it was over, for this couple and their child, so far as U.S. law is concerned.

A copy of the 38-page complaint filed by the adoptive parents contains a complete chronology of events, as alleged by the adoptive parents, and lists those who were named in the lawsuit and the amounts being sought in each instance of the 32-count complaint:

World Child: compensatory damages sought of $2 million, punitive damages, $5 million;

Sherrell J. Goolsby, Executive Director of World Child: the same $2 million and $5 million figure; and

Frank Foundation: $2 million and $5 million.

The lawsuit alleged “intentional misrepresentation/fraud,” “intentional non-disclosure,” “negligent placement of adoptive child,” and “intentional infliction of emotional distress.” Lutheran Social Services of the National Capital Area, which certified the home study for the couple, was not named. Not sued by name were: Nina Kostina, President of the Frank Foundation web site; Alla Solomonova, the Russian coordinator of adoptions for World Child and/or Frank Foundation; Jane Molchanova, a Russian translator provided by World Child and/or Frank Foundation.

The complaint reveals that the couple traveled to Cheriponava, an orphanage in the Novaslbirsk [sic] area of Russia, and adopted the boy on Aug. 27, 1997, at six months and two days of age. On Aug. 28, the child was examined by a Russian-speaking physician and, just before leaving Russia and after the adoption was final, certain untranslated medical records were given to the couple.

After returning to the USA, the complaint alleges that the couple had the documents translated into English. The documents disclosed that the child was diagnosed by a neurologist prior to adoption with “pre-perinatal encephalopathy of toxico-hypoxic genesis, hypertensive hydrocephalic syndrome, and pyramidal insufficiency,” which the lawsuit claims are elements of Tuberous Sclerosis.

Coincidentally, prior to July 27, 1997, when the adoptive parents first saw the pictures and videos of the baby referred to them, the July/August issue of Adoption/Medical News about “Russian Children and Medical Records” had just been published. The 8-page double issue mentioned “perinatal encephalopathy of hypoxic genesis” as “brain damage at birth from lack of oxygen.” Only a physician could interpret what the “pre” in the baby’s diagnosis suggested. “Hypertension-hydrocephalic syndrome” includes a dozen criteria, either alone or in combination, the first of which is “seizures.” “Pyramidal insufficiency” means, among other things, an infant “considered to be at risk of cerebral palsy.” The same issue of the newsletter, which was $36 per year, offered three additional resources “that may be helpful to families, physicians or agencies working with adoptions from Eastern Europe and the former Soviet Union.” If someone had bought everything from the publisher, the bill would have increased only $19.

The trial is over and no jury was selected and the opening statements of the attorneys were never given. While the lawyers debated settlement for more than two hours, Sherrell Goolsby of World Child and Nina Kostina of Frank Foundation chatted amiably in the courtroom. Kostina even put on her glasses and read, with great care, the large-format pages that looked like medical records, at least from my front-row seat. Too bad someone didn’t have the Russian medical records, translated and understood, to discuss with the adoptive parents or their pediatrician before the parents ever set out for Russia.

As the lawyers piled carts with boxes of files, I couldn’t help wonder how much of the “secret settlement” went to the lawyers and how much went to the parents to help them with the multi-million dollar bills for medical care and other services their child will require over his lifetime. Considering the numbers of lawyers and the time that must have been spent on the case, I’d bet the cost of a subscription to Adoption/Medical News (still $36) that the lawyers went away with the majority of the money paid out by the insurance companies.