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In re Adoption of M.S.


January 19, 2010


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.


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


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 court lacked jurisdiction to make a ruling on the matter.*fn6


I. Standard of Review

"Where, as here, the issue presented is one of statutory construction, our fundamental task is `to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.' [Citations.] We begin by examining the statutory language because it generally is the most reliable indicator of legislative intent. [Citation.] We give the language its usual and ordinary meaning, and `[i]f there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs.' [Citation.]" (Allen v. Sully- Miller Contracting Co. (2002) 28 Cal.4th 222, 227.)

II. Section 9100

Appellants cite no legal authority for un-doing the Ukraine adoption except section 9100 (fn. 1, ante).

Section 9100 authorizes the superior court to vacate an adoption of a child "adopted pursuant to the law of this state."

Appellants contend the superior court erred in construing section 9100's language "pursuant to the law of this state" to mean that an adoption must have occurred within California's borders in order to be afforded section 9100 relief to vacate the adoption.

However, the language of section 9100 itself, plus the language of a companion statute--section 9101--clearly show that section 9100 is limited to un-doing adoptions that were granted by California state courts.*fn7

Thus, section 9100 says a petition under that section "may be filed with the court that granted the adoption petition." (Fn. 1, ante.) "`It is a conceded principle that the laws of a state have no force, proprio vigore*fn8 beyond its territorial limits . . . .'" (Estate of Lund (1945) 26 Cal.2d 472, 489, quoting Hoyt v. Thompson, 5 N.Y. 320, 340.) With this in mind, the California Legislature surely did not intend to legislate court filings in a Ukrainian court. We therefore infer "the court that granted the adoption petition" in section 9100 must be a California state court. Moreover, when two statutes touch upon a common subject, they are to be construed in reference to each other. (San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal.4th 822, 836.) In the event an adoption is vacated under section 9100, section 9101*fn9 places responsibility for the support of the now unadopted child on "[t]he county in which the proceeding for adoption was had." In this case, there is no such county in California, and the California Legislature obviously has no power to order a Ukrainian county (if such even exists) to support the child. Where section 9100 requires the petition to be filed "with the court that granted the adoption petition," the reference is to a court within the state of California. In this case, the petition was not filed "with the court that granted the adoption petition." Accordingly, the Yolo County Superior Court correctly ruled that it had no authority to adjudicate the petition.

Appellants offer two main arguments against our conclusion.

First, they say that where section 9100 provides that a petition "may be filed . . . with the court that granted the adoption petition," the word "may" is permissive, not mandatory. Section 12 provides, "`[s]hall' is mandatory and `may' is permissive." In other words, appellants argue section 9100 does not require a petition to be filed "with the court that granted the adoption petition."

For reasons that follow, we do not agree.

The sentence in which the word "may" occurs is as follows: "(a) If a child adopted pursuant to the law of this state shows evidence of a developmental disability or mental illness as a result of conditions existing before the adoption to an extent that the child cannot be relinquished to an adoption agency on the grounds that the child is considered unadoptable, and of which conditions the adoptive parent or parents had no knowledge or notice before the entry of the order of adoption, a petition setting forth those facts may be filed by the adoptive parents or parent with the court that granted the adoption petition." (§ 9100.)

In this sentence, the word "may" is used in the permissive sense of giving a parent or parents discretion whether to file a petition under section 9100. This is in stark contrast to section 8919 (fn. 4, ante), which requires a readoption of a child adopted in a foreign country "if it is required by the Department of Homeland Security."

So, by its use of "may," section 9100 makes clear that the parent or parents have discretion whether to file a petition under that statute.

However, once the decision is made to file a petition, the petition must be filed "with the court that granted the adoption petition." This is the only construction that makes sense. No other court is designated as the proper place for the filing of a petition. If the petition could be filed in any court, then reference to "the court that granted the adoption petition" would be unnecessary. Moreover, since the petition seeks to unadopt a child, it is only reasonable to require the petition to be filed in the court that has the records of the original adoption. Thus, if a petition under section 9100 is filed, it must be filed "with the court that granted the adoption petition."

Appellants next argue that section 9100 should receive a liberal construction. (See Department of Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6.)

However, the doctrine of "liberal construction" has its limits. "As a rule, a command that a constitutional provision or a statute be liberally construed `does not license either enlargement or restriction of its evident meaning.' (People v. Cruz (1974) 12 Cal.3d 562, 566.)" (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2001) 24 Cal.4th 830, 844.) Whatever may be thought of the wisdom, expediency, or policy of a statute, we have no power to rewrite the statute to make it conform to a presumed intention that is not expressed. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 585.) In our view, appellants are asking us to re-write the statutory scheme. This we will not do.

For these reasons, then, we conclude that section 9100 applies only to adoptions granted by a California state court. This is the law that must be applied in this difficult case.*fn10 The trial court correctly found that section 9100 could not be used to undo the Ukrainian adoption.

III. Withdrawal of Contention re Readoption

In their opening brief, appellants argued in the alternative that they should be allowed to amend the pleading to readopt the child in California under section 8919 (with the intent that they would then petition to set aside the adoption under section 9100). In their reply brief, appellants withdraw this argument, and we therefore need not address it.


The judgment (order) is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

We concur: SCOTLAND, P.J., HULL J.

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