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Justices correctly observe that “there can be no good ending for anyone” in this tragic case . . .
In affirmance, Third District holds that Fam C §9100, which permits adoptive parents to petition to set aside adoptions under certain conditions, does not apply to adoptions of foreign-born children completed in child’s native country
Adoption of M.S.
(January 19, 2010) |
California Court of Appeal 3 Civil C060992, 181 Cal.App.4th50, 103 Cal.Rptr.3d 715, 2009 FA 1424, per Sims, J (Scotland, PJ and Hull, J, concurring). Yolo County: White, J, affirmed. For parents: Richard Fathy, (916) 921-2535. For CSS: Deputy Attorneys General Julie Weng-Gutierrez, (916) 445-9555, and Niromi Wijewantha, (916) 445-4931. CFLP §G.168.0.34.5. |
In 2003, Eleanor Pracht-Smith and Martin Smith retained counsel and contacted Heartsent Adoptions, Inc., a private adoption agency to assist them in adopting a foreign-born child. Later that year the couple went to Ukraine where they chose a three-year-old girl, M.S., to join their family. On December 15, 2003, the Ukraine trial court issued an adoption decree which stated in part that M.S.’s mother, who was mentally ill and epileptic, had left the little girl at a hospital, never to return, and that the whereabouts of M.S.’s biological father were unknown. The adoption decree also stated that the child was “ ‘almost healthy though psychologically delayed.’ ” Eleanor and Martin would later state that M.S.’s medical history was not given to them until after the adoption was final, and that they believed she was healthy.
After the parents brought M.S. home, they had her medically evaluated. Healthcare professionals told them that M.S. suffered from spastic cerebral palsy, reactive attachment disorder, oppositional defiance disorder, moderate mental retardation, global development delay, ataxia, fetal alcohol syndrome or effect, microcephaly, and post-traumatic stress disorder. Eleanor and Martin took no steps to readopt the child in California. In 2005, the parents placed M.S. in an intensive foster care placement in Arizona.
On May 20, 2008, Eleanor and Martin filed a motion to set aside the adoption under Fam C §9100, which permits adoptive parents to seek a set-aside if a child adopted in California shows developmental disability or mental illness due to pre-adopt conditions of which they had no knowledge or notice. In support of their motion, the parents asserted that they did not know of M.S.’s physical and mental problems prior to the adoption, that the girl could not live in a normal home environment, and that she was not adoptable. In opposition, the California Department of Social Services (DSS) argued that Fam C §9100 does not apply to intercountry adoptions like this one, that the available records should have put the parents on notice of their daughter’s disabilities, and that lack of access to investigative reports and documentation made it impossible for the DSS to meet its statutory obligation to make a full report to the court. The DSS also contended that a set-aside would not be appropriate because M.S. could not be returned to Ukraine. After a hearing, the trial court denied the parents’ petition, finding that it lacked the authority to grant it because §9100 does not apply to intercountry adoptions.
The parents appealed, but the Third District affirmed.
Stymied by the statute . . .
The justices noted that the parents relied solely on §9100 as authority for setting aside their daughter’s adoption. Therefore, they looked to see whether that statute provided such authority. The panel recognized that §9100 permits a trial court to vacate an adoption which was conducted pursuant to California law. As Eleanor and Martin saw it, pursuant to California law didn’t necessarily mean that the adoption had to have been adjudicated within state boundaries. The justices didn’t agree. They pointed out that the statute also says that set-aside petitions “may be filed with the court that granted the adoption petition.” And, they reasoned, since the legislature has no authority to make laws governing adoptions in Ukraine, the trial court that granted the petition must be a California trial court. Moreover, a companion statute Fam C §9101 provides that the county from which the child was adopted will have the responsibility of caring for him or her after a set-aside order is issued. It would make no sense, the panel said, to assume that Ukraine would assume that responsibility. The parents asserted that the filing of the petition in the court that granted the adoption is simply permissive, not mandatory, because the statute says “may be filed . . .” The justices, however, thought that the context in which that phrase is used in the statute gives the parents discretion to file a petition if they want to, but not discretion to file either in the California court or somewhere else. As for the parents’ contention that the panel should construe §9100 liberally, the justices declined to do so. They reasoned that giving the parents the result they wanted would require them to rewrite the statute, not just construe it liberally. Summing up, the panel found that the parents had not filed their set-aside petition in the trial court that granted the adoption, thus the lower court had not erred in concluding that it lacked the authority to set aside the adoption under §9100.
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The justices have it right when they say that “This is a tragic case in which there can be no good ending for anyone.” And while they recognize that each side has its equities, they find that their hands are ties by the limits of the statute. We hope that this case is one of the rare ones; we’d hate to think that many adoptive parents must endure what these have had to endure or that there are many unfortunate children for whom adoption provides only a little relief from mental and physical hardships they have had to endure from birth. A tragedy indeed.
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