Ukrainian "unadoption" denied by appellate court in California
*Tragic story, even though it is two years old, not sure if this is in the PPL archives. Interesting to read especially in relation to other ICA dissolved cases occurring. In this story, California court will not undo Ukrainian adoption.
The decision rests on a California statute, section 9100 of the California Family Code, that does, in fact, allow a court to vacate an adoption:
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 parents or parent 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. If these facts are proved to the satisfaction of the court, it may make an order setting aside the order of adoption.
So much for "adoption is forever," hmm? The court here isn't refusing to vacate the adoption because it feels the parents shouldn't disrupt, it's simply that the law applies, the court says, only to a child "adopted pursuant to the law of this state." So feel free to disrupt your California adoption, but not this Ukrainian one.
For a further explanation and AP insight can be found at: http://chinaadoptiontalk.blogspot.com/2012/04/california-court-wont-undo-ukrainian.html
And the California statute isn't all that unusual. I've mentioned before (see here and here) that certain "reforms" were put into place in the late 80s/early 90s as a response to "wrongful adoption" lawsuits, where adoptive parents sued states and adoption agencies alleging that they were affirmatively lied to or information was hidden so that they didn't know about problems the kids had. Among the reforms were increased informational requirements prior to adoption, and these kind of statutes that make vacating the adoption the remedy for wrongful adoption.
Because of its jurisdictional ruling, the court doesn't have to address the merits of the petition here, deciding whether the child is "unadoptable" because of a "developmental disability or mental illness" of which the adoptive parents "had no knowledge or notice." Reaching the merits might have led to the same results, since there was some evidence that the adoptive parents were aware of some of the issues prior to the adoption:
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.
The parents allege, though, that they didn't know any of that until after the adoption. And in fact, they discovered after returning home, that "almost healthy though psychologically delayed" may have been an understatement:
In California, various evaluations were performed due to M.S.'s low level of functioning. Health care professionals diagnosed her with spastic cerebral palsy, reactive attachment disorder, oppositional defiance disorder, moderate mental retardation, global developmental delay, ataxia, fetal alcohol syndrome or effect, microcephaly, and posttraumatic 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.
So what's an adoptive parent to do?! You can't put 'em on a plane back to Russia, you can't get the court to relieve you of the responsibility. . . .
So you parent. Even when it's expensive, even when the child doesn't meet your expectations, even when it's damned difficult. You parent. And if the best thing for your child is intensive foster care placement in Arizona, that's what you do. And you're still the parent. Because no one ever said it would be easy.
From: 01/20/2010
Ukrainian "unadoption" denied by appellate court
"This is a tragic case in which there can be no good ending for anyone."
Thus begins the decision (written by Justice Rick Sims, and concurred by Presiding Justice Arthur Scotland and Justice Harry Hull) of the State Court of Appeals, Third District, in the matter of Eleanor Pracht-Smith et al., v. the California Department of Social Services.
Eleanor Pracht-Smith, a science teacher at Tremont Elementary School in Dixon, and her husband, Martin Smith, adopted a three-year-old girl in the Ukraine in December 2003 The adoption decree, issued by a Ukrainian court, said:
...the child's [biological] mother is mentally sick [hospital reports later indicated it was epilepsy]. 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...
The child, however, who was never "readopted" in California, was not healthy, and eventually:
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.
The adoptive parents found that the child could not live in a "normal home environment, is unadoptable..." and the child has been in "intensive foster care placement" in Arizona for four years. In 2008, the parents filed in Yolo County Superior Court to set aside the adoption. Yolo said -- in layman's language -- that it didn't have jurisdiction, the Ukrainian court that issued the adoption decree was the venue.
The issue is, of course, lifetime support of this child. In upholding the Yolo decision, the court of appeals has determined that the support be the responsibility of Martin Smith and Eleanor Pracht-Smith.
Responsibility for the support of an unadopted child would rest with the county in which the adoption proceedings took place. The decision states:
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.
Photograph above was taken outside an orphanage in the Ukraine.
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