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NASHVILLE — When a Department of Children's Services caseworker first placed Jonathan in Janie Cunningham's arms, he was just 2 weeks old — a tiny thing, born three months premature — with a swirl of thick brown hair that seemed to swallow up his face.
The Cunninghams, who were foster parents, signed the adoption papers 16 months later. Jonathan was their fifth son, in a tight-knit and often boisterous family in Tullahoma, Tenn.
MORE: Tennessean coverage of Department of Children's Services
But within months of his second birthday, Jonathan began to act strangely, staying up all night, kicking violently, crying inconsolably. He didn't learn to talk until he was 3.
By age 4, he had become violent. He punched his hand through a glass pane. He tried to jump out of moving cars and said he hoped a big yellow truck would run over him. He bit his mother, split her lip and broke her eyeglasses.
Janie and her husband, Kelly Cunningham, spent years trying to help Jonathan. Janie quit her job. They exhausted their private health insurance, sold their house and, eventually, declared bankruptcy to pay Jonathan's medical bills.
"I thought, 'He's my baby.' I loved him regardless, and we said we would deal with whatever comes our way," Janie Cunningham said. "We would get him whatever help he needed. No one is ever guaranteed good physical or mental health."
Adoptive parents of children such as Jonathan are guaranteed financial help and health insurance under federal adoption rules for children born with special needs — benefits the Cunninghams say caseworkers with the Tennessee Department of Children's Services specifically told them they could not receive when they adopted Jonathan.
Medical records the Cunninghams were later able to obtain from doctors at Vanderbilt University Medical Center showed that Jonathan was born with a host of well-documented problems — known to lead to psychological and physical impairments.
At birth, Jonathan tested positive for phenobarbital, methamphetamine, cocaine and marijuana, according to Vanderbilt University Medical Center records. His biological mother received no prenatal care, and she had admitted that her first cousin might be Jonathan's biological father. She had been hospitalized for schizophrenia, the records showed.
"DCS had access to all of Jon's records, knew his mother's history and, in fact, they knew more about Jon than the Cunninghams," said Cynthia Cheatham, an attorney for the couple. "At the time of the adoption, they should have sat them down and explained what adoption assistance was. They not only did not do that, they pretty much lied to them. DCS kept important information about a child from his parents."
When the Cunninghams turned to the agency's staff for help when Jonathan was 4, they were told they could not qualify because Jonathan had been healthy when he was adopted — which would disqualify him according to the rules of the adoption assistance program. For parents to receive any aid, the program requires pre-existing conditions to be documented before the adoption.
A spokesman for the Department of Children's Services acknowledged the agency had erred when Jonathan was first adopted but said the agency has worked to "make it right" — and has implemented improvements in its adoption assistance program.
"Yes, we made a mistake approximately seven years ago when this case was initially approved," said spokesman Rob Johnson.
"For the past few months, though, our staff has worked hard and faithfully to make it right," he said. "We believe the family has done great work on behalf of this child. By the same token, we respectfully take issue with their attorney's contention that DCS was deliberately untruthful."
Department of Children's Services attorneys last month agreed to a settlement with the Cunningham's for $79,000 in retroactive adoptive assistance after Cheatham threatened to file a lawsuit against the agency.
The agency also pledged to provide assistance going forward to help the couple with their expenses raising the now-9-year old boy, who has been diagnosed with autism, bi-polar disorder, attention deficit hyperactivity disorder and disruptive behavior disorder, among other things.
Much to overcome
Advocates for adoptive families of children with special needs say the Cunninghams' experience is not an isolated case.
For more than a decade, two class-action lawsuits against Tennessee brought federal court oversight of the medical care provided to children in the department's custody and the information about a child's medical background that is passed along to foster parents and adoptive families.
The court oversight identified problems and forced system-wide improvements. In one lawsuit known as John B., overseers appointed by the court more than a decade ago found the agency was not getting children regular check-ups or proper medical or psychological care before placing kids with foster families or adoptive parents.
That suit has since ended after the court found the agency has made significant improvements in the past 15 years.
Michele Johnson, executive director of the Tennessee Justice Center, which filed the now-ended John B. class action lawsuit, said her agency has tried to assist nearly two dozen families adopting children from Department of Children's Services custody in similar situations.
Johnson said she believes caseworkers and staff are motivated to find good adoptive homes for children in their care, but that the agency has fallen down on the job of evaluating children's backgrounds and giving adoptive parents the guidance, support and financial assistance they need.
High caseloads, bureaucratic errors and pressures to get children adopted are all factors, Johnson said. The agency is under court order to meet annual benchmarks in getting children adopted out of state custody.
"What you would expect from DCS is a little more expertise and knowledge about what to anticipate in terms of levels of abuse or drug or alcohol abuse in utero," she said. "They should have the resources to know that a child who looks really cute at age 4 but who has been sexually abused or exposed in utero to cocaine, that chances of that child growing up and not needing any mental health care is nil."
A federal adoption assistance program was created by Congress in 1980 to encourage the adoption of special-needs children and remove the financial obstacles.
States can offer financial payments — a combination of federal grants and money from the agency budget — to help families pay for therapy, transportation, in-home services, medications and other expenses associated with a child diagnosed with special needs at the time of the adoption. Similar financial assistance is offered pre-adoption to foster parents of children with medical or psychological problems.
'He could have died'
Hoping to adopt, Josh and Tonya Graham became foster parents in 2007.
When 6-week-old Chase was brought by a Department of Children's Services casework to the Graham home, she told them he had been in the hospital overnight with a virus, but was otherwise healthy, Tonya Graham said.
The first night, they noticed his cries were barely audible. He had trouble eating.
Six days later, Chase couldn't keep his food down and he was rushed to the hospital.
They learned Chase already had a long medical history. Chase had been born addicted to benzodiazepine and cocaine. He had been on life support. And when he was discharged, doctors required him to go home with special bottles, special formula and an oxygen machine.
"None of that was relayed to us," Tonya Graham said. "We were told that he was a healthy baby. We learned little by little over time just how sick he was.
"We told DCS he could have died because of the information you did not give us."
Agency officials dispute the Grahams' account, saying agency caseworkers were never told the family had concerns about a lack of medical equipment being brought to their home.
Johnson, the agency spokesman, noted that after a series of hospitalizations nine months after being placed in the Grahams' home, the child was properly qualified as "medically fragile."
The Grahams have adopted Chase and were able to secure adoption assistance.
They remain in an ongoing dispute with agency officials over retroactive pre-adoption foster care assistance for special needs children from the day Chase was placed in their home.
They are appealing the agency's decision to deny it.