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In re Adoption of M.S.

January 19, 2010

ADOPTION OF M.S., A MINOR.
ELEANOR PRACHT-SMITH ET AL., PLAINTIFFS AND APPELLANTS,
v.
CALIFORNIA DEPARTMENT OF SOCIAL SERVICES DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Yolo County, Kathleen M. White, Judge. Affirmed. (Super. Ct. No. CVSA0830).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PUBLICATION

This is a tragic case in which there can be no good ending for anyone.

Appellants Eleanor Pracht-Smith and Martin Smith appeal from an order denying their petition to set aside their Ukrainian adoption of a Ukrainian girl, M.S. The petition was opposed by the California Department of Social Services (the Department or DSS). Appellants contend the trial court erred in construing Family Code section 9100,*fn1 which authorizes the court to vacate adoptions, as inapplicable to an "intercountry adoption" completed in Ukraine.*fn2

This is a case with equities on both sides. However, when we apply the governing statutes enacted by the Legislature, we conclude the trial court was correct. We shall affirm the judgment.*fn3

FACTUAL AND PROCEDURAL BACKGROUND

In early 2003, appellants began the process to adopt a foreign-born child. Appellants engaged a California lawyer and a private California adoption agency, Heartsent Adoptions, Inc. (Heartsent), which was licensed by the Department to provide non-custodial intercountry adoption services.

In late 2003, appellants spent several weeks in Ukraine for the adoption. On December 15, 2003, by decree of a Ukrainian court, appellants adopted M.S., a three-year-old Ukrainian girl. The Ukrainian court decree stated in part: "It was found out from the case documents that the child's [biological] mother is mentally sick. She left the child at the hospital and never visited her. The place of father's residence was not identified. Since February 2002 the child has been made the ward of the government. The medical history of the girl says that she is almost healthy though psychologically delayed." A hospital record says the mother has epilepsy.

Appellants' declarations assert they believed M.S. was healthy, were not aware of this medical background information until after the adoption was finalized, and the documents were not translated for them until after the adoption was completed.

Appellants brought M.S. to live in their Davis home. They did not "readopt" M.S. in California, as authorized by section 8919.*fn4

In California, various evaluations were performed due to M.S.'s low level of functioning. Healthcare professionals diagnosed her with 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. Appellants assert M.S. cannot live in a normal home environment, is unadoptable, and has been living in intensive foster care placement in Arizona since 2005.

On May 20, 2008, appellants filed in Yolo County Superior Court a "MOTION TO SET ASIDE ORDER OF ADOPTION UNDER FAMILY CODE SECTION 9100" (the petition). This petition was served on the Department, which filed an opposition. The opposition argued section 9100 is inapplicable to intercountry adoptions; the statutory remedy is not appropriate because the child could not be returned to Ukraine; the records gave notice of potential problems; and the Department did not have access to underlying investigative reports or documentation it would need to fulfill its obligation to make a full report to the court.

On October 31, 2008, after hearing oral argument, the superior court*fn5 issued an "ORDER DENYING PETITION TO SET ASIDE INTERCOUNTRY ADOPTION PURSUANT TO FAMILY CODE SECTION 9100." The order denied the petition on the ground the ...


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